UC-NRLF 


B    3    110    SbM 


SEPARATION  OF  POWERS 


ADMTKIS  f  ivATIVE   EXERCISE 

OF  THE 

POLICE   POWER 


BY 


IIIOMAS   REED   POWELL 


SUBMITTED  IN    PARTTaL   FULFILMENT  OF  THE   REQUIRKMt- .>TS 
FOR  THE  DEGREE  OF  DOCTOR  OF  PHILOSOFHV 

IN  THE 

Faculty  of  Political  Science 
Columbia  University 


NEW  YORK 
1913 


EXCHANGE 


THE  PRINCIPLE  OF  THE 

SEPARATION  OF  POWERS 

IN  ITS  APPLICATION   TO   THE 

ADMINISTRATIVE   EXKRCISEVLA 

OF  THE 

POLICE   POWER 


BY 

THOMAS  REED  POWELL 


SUBMITTED  IN  PARTIAL  FULFILMENT  OF  THE  REQUIREMENTS 
FOR  THE  DEGREE  OF   DOCTOR  OF  PHILOSOPHY 

IN    THE 

Faculty  of  Political  Science 
Columbia  University 


REPRINTED    FROM 

Political  Science  Quarterly 
Vol.  XXVII,  No.  2,  pp.  215-238;  Vol.  XXVIII,  No.  i,  pp.  34-48 

Harvard  Law  Review 
Vol.  XXIV,  No.  4,  pp.  268-289;  No.  5,  pp.  333-346;  No.  6,  pp.  441-459 


NEW  YORK 
I913 


PREFACE 

This  monograph  forms  part  of  a  study  of  the  control  exer- 
cised by  American  courts  over  the  action  of  administrative 
authorities  in  the  formulation  and  execution  of  governmental 
policy.  Other  portions  have  been  published  in  the  American 
Political  Science  Reviezv^  Volume  I,  pp.  583-607,  and  the  Harvard 
Laiv  Review,  Volume  XXII,  pp.  360-366.  The  completed  study 
will  include  a  detailed  consideration  of  judicial  control  over 
administrative  action  dealing  with  revenue  and  eminent  domain, 
the  regulation  of  commerce  and  of  corporations,  the  control  and 
disposition  of  the  public  domain,  and  the  administration  of  the 
postal  service. 

Only  by  an  examination  of  the  whole  field  of  administrative 
activity  can  we  reach  a  satisfactory  comprehension  of  the  limits 
of  judicial  control.  For  the  powers  which  may  be  exercised  by 
administrative  authorities  depend  largely  upon  special  considera- 
tions peculiar  to  the  various  individual  interests  which  adminis- 
trative action  may  affect.  They  cannot  be  determined  solely  by 
reference  to  general  principles  defining  the  theoretical  relation 
between  the  judiciary  and  the  administration  as  separate  depart- 
ments of  government. 

The  Study  of  Administrative  Law  in  the  United  States  owes 
to  Professor  Goodnow  of  Columbia  University  a  debt  which  all 
his  fellow  laborers  gratefully  acknowledge.  He  first  established 
it  as  a  separate  field  of  investigation.  He  introduced  American 
scholars  to  the  knowledge  of  the  administrative  systems  of  for- 
eign countries.  His  wide  scholarship,  discriminating  insight  and 
sound  practical  sense  have  been  of  incalculable  service  in  the 
comprehension  and  solution  of  American  problems.  To  him,  in 
a  very  special  sense,  is  this  monograph  indebted.  Undertaken 
at  his  suggestion,  it  has  enjoyed  the  benefit  of  his  continued  aid 
and  counsel. 

Acknowledgment  is  also  due  to  the  published  work  of  Pro- 
fessor Freund  of  the  University  of  Chicago  and  to  valuable  sug- 
gestions from  Professor  Munroe  Smith  of  Columbia  University, 

March  30,  1913 


^  n  A  C  O  O 


CONTENTS 


Part  I 

ADMINISTRATIVE   EXERCISE  OF  LEGISLATIVE 
AND  JUDICIAL  POWER 

PAGE 

CHAPTER  I 

The  Delegation  of  Power  to  Act 215 

Section!.    Constitutional  aspects  of  the  problem 215 

Section  2.    Power  to  determine  conditions  under  which  a  statute  is 

to  be  operative 222 

Section  3.    Power  to  make  regulations 225 

Section  4.    Power  to  ascertain  facts  and  apply  rules  of  law  in  con- 
troversies    232 

Section  5.   Conclusion 236 

CHAPTER  II 

Principles  of  Judicial  Review 34 

Section  i.    Introduction 34 

Section  2.   Judicial  control  over  administrative  regulations      ...  36 

Section  3.    Effect  of  the  failure  of  the  administration  to  take  action  43 

Section  4.    Finality  of  administrative  orders  and  adjudications    .     .  46 

Part  II 

ADMINISTRATIVE   EXERCISE  X)F  THE 
POLICE  POWER 

CHAPTER  I 

Precautionary  Regulation 2^19 

CHAPTER  II 

Administrative  Orders  and  Execution 333 

A.    Necessity  for  notice  and  hearing 334 

(i)  General  regulations 334 

(2)  Special  orders 334 

(3)  Adjudications 335 

(4)  Summary  execution 336 

P>.    Judicial  review 338 

CHAPTER  III 

Judicial  Review  in  Actions  for  Damages 441 

A.  Liability  of  public  corporations 441 

(i)  The  state 441 

(2)  Municipalities 441 

B.  Liability  of  Officers 442 

(i)  Denial  of  permission 442 

(2)  General  regulations 443 

(3)  Special  orders  and  adjudications 444 

(4)  Administrative  execution 446 

(a)  In  absence  of  opportunity  to  be  heard     ....  447 

(b)  After  a  hearing 450 


SEPARATION  OF  POWERS 

ADMINISTRATIVE    EXERCISE   OF  LEGISLATIVE 

AND  JUDICIAL  POWER 


I 

THE  DELEGATION  OF  POWER  TO  ACT 


BY 

THOMAS  REED  POWELL 


REPRINTED  FROM  POLITICAL  SCIENCE  QUARTERLY 
Vol.  XXVIL,  No.  2 


NEW  YORK 

PUBLISHED  BY  GINN  &  COMPANY 

1912 


SEPARATION  OF  POWERS  :  ADMINISTRATIVE  EXER- 
CISE OF  LEGISLATIVE  AND  JUr>iC(AtrPOWEfe'  ' 

I.    THE    DELEGATION   OF   POWER   TO   ACT 
I .   Constitutional  aspects  of  the  problem 

THE  constitutions  of  our  state  and  federal  governments 
betray  in  many  ways  the  apprehension  of  undue  aggres- 
sion on  the  part  of  executive  and  administrative  authori- 
ties. The  Enghsh  theory  that  the  residuary  powers  of  govern- 
ment are  vested  in  the  crown  finds  no  counterpart  in  our  pubhc 
|law.  Nor  were  the  framers  of  our  various  constitutions  con- 
tent with  the  general  principle  that  the  executive  has  only  those 
powers  specifically  enumerated.  Executive  action  is  limited, 
not  only  by  clauses  requiring  the  concurrence  of  other  depart- 
ments of  government,  the  so-called  checks  and  balances,  but  by 
express  provisions  that  the  executive  authority  shall  not  exer- 
cize the  powers  belonging  to  the  other  branches.  This  so- 
called  distributing  clause,'  which  appears  in  most  of  our  state 
constitutions,  is  to  be  inferred  also  in  the  federal  Constitution, 
where  the  political  theory  known  as  the  separation  of  powers 
becomes  through  judicial  decision  a  rule  of  law.  The  Supreme 
Court  has  asserted  that  all  the  powers  of  government,  whether 
state  or  national,  are  divided  into  three  grand  departments,  and 
that  "  as  a  general  rule,  the  powers  confided  by  the  Constitution 
to  one  of  these  departments  cannot  be  exercized  by  another."^ 
Hence  the  exercise  of  any  authority  by  the  executive,  even  by 
reason  of  express  delegation  from  the  legislature,  may  be  ques- 
tioned and  condemned  in  judicial  proceedings,  on  the  ground 
that  the  power  sought  to  be  conferred  or  exercized  is  not  in  its 
nature  executive,  but  belongs  more  properly  to  the  legislative 
or  judicial  department. 

Furthermore,  the  federal  Constitution  by  its  fifth  and  four- 
teenth amendments  provides  that  no  person  shall  be  deprived 

'  For  an  example  of  such  a  clause,  cf.  infra,  p.  218,  note. 

2  Kilbourne  v.  Thompson,  13  Otto,  168  {1880). 

215 


2i6  POLITICAL  SCIENCE  QUARTERLY         [Vol.  XXVII 

of  life,  liberty  or  property,  either  by  the  national  or  by  the 
?)tate  governnico<:9,  without  due  process  of  law.  And  the  de- 
velopment of  "diif  constitutional  law  has  resulted  in  the  exercise 
•by.  thc'Jt^der^t  Suptem^  Court  of  the  ultimate  power  to  deter- 
rtii'ne  what  is  "  due  process."  Similar  clauses  in  state  constitu- 
tions vest  in  the  state  courts  the  power  to  declare  the  action  of 
state  administrative  authorities  wanting  in  due  process  within 
the  meaning  of  the  state  constitution,  even  where  such  action  is 
not  regarded  by  the  federal  courts  as  prohibited  by  the  due- 
process  clause  of  the  fourteenth  amendment.  So  that  the 
legality  of  any  executive  action  and  of  any  interference  with 
person  or  property  may  always  be  challenged  in  judicial  pro- 
ceedings, and  depends,  in  last  analysis,  upon  its  conformity  to  a 
rule  of  law  laid  down  by  the  courts. 

The  question  of  the  validity  of  executive  and  administrative 
action  thus  presents  itself  in  a  twofold  aspect :  Is  it  an  exer- 
cise of  power  by  a  department  of  government  to  which  such 
power  may  not  legally  be  confided?  Is  it  a  denial  to  the  indi- 
vidual of  due  process  of  law? 

With  respect  to  state  action,  the  state  court  is  the  final  judge 
of  the  question  whether  the  action  of  the  executive  authority  is 
improper  as  a  violation  of  the  distributing  clause.  In  Consoli- 
dated Rendering  Company  v.  Vermont,'  where  it  was  urged 
that  a  state  statute  which  gave  to  tribunals  or  commissions  other 
than  courts  the  power  to  compel  the  production  of  books  and 
papers  was  a  violation  of  the  fourteenth  amendment  as  an 
attempt  to  confer  judicial  powers  on  non-judicial  authorities, 
the  Supreme  Court  answered  brusquely,  without  citation  of 
authority:  "There  is  no  provision  in  the  federal  Constitution 
which  directly  or  impliedly  prohibits  a  state,  under  its  own 
laws,  from  conferring  upon  non-judicial  bodies  certain  functions 
that   may  be   called   judicial."  =*     But   this   statement   must   be 

'  207  U.  S.  541  (1908). 

'  Cf.  Keetz  v.  Michigan,  188  U.  S.  505  (1903),  wliere,  in  reply  to  the  objection 
that  the  jxiwer  vested  in  a  board  of  medical  examiner.s  to  determine  whether  one  had 
been  legally  registered  imder  a  prior  statute  involved  the  decision  of  a  legal  question, 
the  court  asserted  that  "  no  provision  in  the  federal  Constitution  forbids  a  stale  from 
granting  to  a  trilumal,  whether  called  a  court  or  a  board  of  registration,  the  finid 
determination  of  a  legal  question." 


No,  2]  SEPARA  TION  OF  PO  WERS  217 

subject  to  the  qualification  that  it  does  not  apply  to  the  con- 
sideration of  objections  made  on  the  ground  that  such  delega- 
tion results  in  a  denial  to  the  individual  of  due  process  of  law. 
Where  individual  rights  are  not  concerned,  the  state  may  appor- 
tion governmental  power  as  it  sees  fit.  But  the  contention  that 
executive  action  is  a  denial  to  the  individual  of  due  process  is, 
when  properly  raised,  always  one  on  which  the  federal  court 
must  express  its  opinion.  For  a  state  cannot,  even  by  its  con- 
stitution, escape  from  the  limitations  of  the  fourteenth  amend- 
ment.' 

These  two  aspects  thus  tend  to  merge  into  one.  Wherever 
legislative  or  judicial  action  is  deemed  a  necessary  preliminary 
to  any  interference  with  private  right,  executive  or  administra- 
tive action  is  invalid  as  wanting  in  due  process  under  the  fifth 
or  the  fourteenth  amendment.  Though  the  principle  of  the 
separation  of  powers  is  said  to  be  implied  in  the  federal  Con- 
stitution, the  action  of  federal  authorities  is  usually  questioned 
under  the  due-process  clause.  The  acts  of  state  authorities, 
may  be  questioned  by  the  federal  courts  under  that  clause  only  ; 
but  this  can  make  little  difference  in  practical  results,  for,  where 
the  individual  is  entitled  to  have  any  matter  committed  to  the 
determination  of  judicial  authorities,  an  administrative  inter- 
ference is  wanting  in  due  process.  And  the  question  of  due 
process  is  also  raised  by  the  substitution  of  administrative  for 
legislative  action,  at  least  where  attempt  is  made  to  define  what 
shall  constitute  a  crime.  Thus,  though  the  fourteenth  amend- 
ment does  not  inhibit  the  administration  from  all  exercises  of 
power  in  their  nature  legislative  or  judicial,  it  does  inhibit  in 
those  cases  in  which  the  individual  is  entitled  to  legislative  or 
judicial  action.  And  where  he  is  not  so  entitled,  a  state  court 
is  unlikely  to  regard  the  administrative  action  as  an  exercise  of 
power  committed  solely  to  other  departments.  So  that  by 
proper  pleadings  an  individual  must  be  able  to  secure  under  the 
fourteenth  amendment  any  relief  that  would  be  open  to  him  by 
reason  of  a  violation  of  the  distributing  clause.     The  general 

'Railroad  Company  v.  McClure,   lo  Wallace,   511   (1870).     New  Orleans   Gas 
Light  Company  v.  Louisiana  Light  Company,  115  U.  S.  650,  at  p.  692  (1885). 


2i8  POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXVII 

problem  of  administrative  action  may  thus  be  considered  as  a 
question  of  due  process,  even  though  many  of  the  cases  are 
based  on  an  interpretation  of  the  distributing  clause.  While  the 
requirements  of  due  process  seem  in  theory  less  drastic  than 
the  specific  inhibitions  of  a  distributing  clause,'  the  distinction 
is  nullified  in  practice  by  the  liberal  attitude  of  the  courts  in 
determining  what  is  an  exercise  of  legislative  or  judicial  power. 

The  power  of  an  executive  or  administrative  authority  to  de- 
cide questions  of  law  or  fact  must  rest  upon  some  constitutional 
or  statutory  provision.  Where  it  is  based  on  a  provision  of 
the  federal  Constitution,  the  right  to  act  cannot  be  questioned; 
but  no7i  constat  that  the  courts  may  not  review  or  revise  the 
action  taken.  A  provision  in  the  federal  Constitution  forbid- 
ding such  review  would  be  a  qualification  of  the  due-process 
clause.  But  no  such  provision  exists,  and  judicial  review  of 
executive  action  is  justified  by  the  same  reasoning  which 
sustains  the  exercise  of  a  similar  power  over  legislative  enact- 
ments. The  power  to  declare  statutes  unconstitutional  enables 
the  courts  to  nullify  any  legislative  delegation  of  power  to  act 
or  any  statutory  prohibition  of  judicial  review,  whether  con- 
tained in  an  act  of  Congress  or  of  a  state  legislature.  And 
such  provisions,  even  in  a  state  constitution,  must  measure  up 
to  the  requirements  of  the  fourteenth  amendment. 

The  decision  or  order  of  an  executive  or  administrative 
authority  may  affect  the  individual  directly,  through  its  express 
reference  and  application  to  his  particular  case,  or  mediately, 
through  the  action  of  some  subordinate  in  enforcing  a  general 

'But  in  Portland  v.  Bangor,  65  Me.  120  (1876),  the  requirements  of  due  process 
seem  to  ho  deemed  even  more  stringent  than  those  of  the  distributinp;  clause.  A 
delegation  of  power  to  overseers  to  commit  to  the  workhouse  persons  found  by  them 
to  be  vagrants,  which  had  previously  been  sustained  under  the  state  constitution  in 
Adeline  G.  Nott's  case,  11  Me.  208  (1834),  and  in  Portland  v.  Bangor,  42  Me.  403 
(1856),  was  held  "abrogated  by  the  fourteenth  amendment  of  the  federal  Consti- 
tution." 

Article  III  of  the  Maine  Constitution  of  1S19  reads  as  follows:  "Sec.  I.  The 
powers  of  this  government  shall  be  divided  into  three  distinct  departments,  the  Legis- 
lative, Kxecutivc  and  Judicial.  Sec.  2.  No  person  or  persons,  lielonging  to  one  of 
these  dc|)artments,  shall  exercise  any  of  the  powers  properly  belonging  to  either  of 
the  others,  except  in  the  cases  herein  expressly  directeil  or  permitted."  Thorpe, 
Federal  and   State  Constitutions,  vol.  iii,  p.  lOSi. 


No.  2]  SEPARATION  OF  POWERS  219 

order  designed  for  all  future  cases  that  may  fall  within  its 
scope.  A  general  order,  when  complained  of,  will  usually  be 
alleged  to  be  legislative  in  nature,  and  objection  will  be  directed 
against  the  power  of  the  official  to  take  any  action  whatever,  as 
well  as  against  the  specific  action  taken.  Where  the  officer 
whose  determination  is  in  question  deals  directly  with  the  indi- 
vidual, his  act  will  more  commonly  be  complained  of  as  judicial 
in  nature.  Here  the  power  to  act  may  be  conceded,  and  ob- 
jection confined  to  the  procedure  by  which  the  action  is  taken 
or  to  the  fact  that  an  opportunity  for  judicial  review  is  denied — 
that  the  administration  attempts  to  make  a  final  and  not  merely 
a  preliminary  disposition  of  the  rights  of  the  individual. 

The  courts  have  been  compelled  to  ascertain  the  meaning  of 
"  due  process "  without  the  aid  of  definitions  in  any  constitu- 
tion. They  have  held  that  it  does  not  require  judicial  process, 
even  where  such  proceedings,  if  authorized,  would  be  entirely 
proper.  The  Supreme  Court  has  declared  that  there  are  cer- 
tain matters  which  may  be  presented  in  such  form  that  the  ju- 
dicial power  is  capable  of  acting  on  them,  and  which  are  sus- 
ceptible of  judicial  determination,  but  which  the  legislature  may 
or  may  not  bring  within  the  cognizance  of  the  courts,  as  it  may 
deem  proper.'  "  It  is  not  sufficient  to  bring  such  matters  under 
the  judicial  power,  that  they  involve  the  exercise  of  judgment 
upon  law  and  fact."  Whether  any  given  dispute  may  be  settled 
by  administrative  rather  than  judicial  authorities  depends,  rather, 
upon  the  nature  of  the  subject  matter  in  controversy. 

However  perfect  the  judicial  theory  that  executive  and  ad- 
ministrative officers  cannot  exercize  legislative  or  judicial  power, 
the  courts  have  allowed  the  legislature  in  numerous  instances  to 
delegate  to  these  authorities  the  power  of  ascertaining  facts  upon 
whose  existence  depends  the  operation,  suspension  or  revival  of 
a  statute,^  and  the  power  of  filling  in  the  details  of  a  statute  3 — 
actions  admittedly  proper  for  the  legislature  itself  to  perform. 

^Murray's  Lessee  v.   Hoboken  Land  and   Improvement  Company,  18  Howard, 
272  (1855). 

^  Field  V.  Clark,  143  U.  S.  649.      Cf.  infra,  p.  223,  224. 

^  Buttfield  V.  Stranahan,  192  U.  S.  470.      Cf,  infra ,  p.  225. 


220  POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXVII 

And  they  have  sustained  the  delegation  of  power  to  designate 
the  concrete  things  described  by  the  statute  in  general  terms/ 
to  discover  in  individual  instances  whether  there  has  been  com- 
pliance with  the  provisions  of  the  statute/  or  to  ascertain  the 
existence  of  facts  on  which  depend  the  rights  or  duties  pre- 
scribed by  statute  ^  —  functions  commonly  exercized  by  the 
judiciary. 

Chief  Justice  Marshall  declared  in  1825  : 

The  diflference  between  the  departments  undoubtedly  is,  that  the  legis- 
lature makes,  the  executive  executes,  and  the  judiciary  construes  the 
law ;  but  the  maker  of  the  law  may  commit  something  to  the  discretion 
of  the  other  departments,  and  the  precise  boundary  of  this  power  is  a 
subject  of  delicate  and  difficult  inquiry,  into  which  a  court  will  not 
enter  unnecessarily/ 

But  such  inquiry  has  been  forced  upon  them  wherever  possible 
by  every  litigant  who  has  felt  himself  aggrieved  by  any  exer- 
cise of  admistrative  power. 

The  cases  involving  these  questions  come  before  the  courts 
in  various  ways:  in  proceedings  directly  against  an  officer 
seeking  to  command  or  to  enjoin  certain  action ;  in  suits  for 
damages ;  in  defences  raised  in  judicial  proceedings  brought 
by  officers  to  enforce  compliance  with  their  decrees;  in  de- 
fences in  criminal  proceedings  instituted  to  punish  the  violation 
of  official  orders;  or  in  suits  between  individuals  where  the 
rights  of  one  or  both  are  based  on  some  official  action. 

The  first  method  of  judicial  redress,  that  of  commanding  or 
enjoining  action,  is  not  available  against  the  chief  executive  of 
the  United  States  ^  or  his  higher  subordinates,^  unless  the  acts 
of  the  latter  sought  to  be  enforced  or  enjoined  are  ministerial 

'  Union  Bridge  Company  v.  United  States,  204  U.  S.  364.      Cf.  injra,  pp.  226,  227. 

*  United  States  ex  rel.  Riverside  Oil  Company  v.  Hitchcock,  190  U.  S.  316.     C/. 
infra,  p.  234. 

'Bong   V.  Campbell  Art  Company,  214   U.   S.    236  (1909).      United   States  v. 
JuToy,  198  U.  S.  253  (1905). 

*  Wayman  v.  Southard,  10  Wheaton,  i. 

'' Mississippi  v.  Johnson,  4  Wallace,  475  (1866). 
•Georgia  v.  Stanton,  6  Wallace,  50  (1867). 


No.  2]  SEPARA  TION  OF  PO  WERS  22 1 

in  character.'  By  the  better  authority  the  rule  as  to  the  presi- 
dent is  applied  by  the  state  courts  to  proceedings  against  the 
governor  '^ ;  though  some  state  courts  treat  the  governor  as  the 
federal  courts  treat  the  heads  of  departments,^  and  extend  to 
him  immunity  from  direct  interference  only  when  his  act  is  not 
ministerial.  Where  the  rule  of  immunity  prevails,  it  extends  to 
boards  of  which  the  governor  is  a  member.'^  The  basis  of  the 
rule  seems  to  be  the  impropriety  of  interference  with  the  execu- 
tive by  a  coordinate  authority.  A  federal  court  will  issue  an 
injunction  against  a  state  board  although  the  governor  is  a 
member,^  or  against  the  governor  alone,  where  his  duty  is  min- 
isterial and  is  not  merely  moral  but  legal.^  But  all  inferior 
officers  may  be  brought  to  the  bar  of  the  ordinary  judicial 
tribunals  to  answer  to  the  plaints  of  individuals,  though  such 
process  directly  interfere  with  contemplated  official  action. 

That  no  official  is  above  the  law  is  the  proudly  asserted  // 
maxim  of  our  system  of  constitutional  government. ^  And  for 
this  reason  it  is  urged  by  many  scholars  that  in  our  system  of 
law  there  is  no  place  for  what  is  called  "  administrative  law." 
The  term  as  borrowed  from  the  French  droit  administratif  is  . 
deemed  to  imply  official  immunity  from  the  process  of  the 
ordinary  civil  tribunals.  It  will  be  clear,  however,  from  the 
discussion  to  follow,  that  in  numerous  classes  of  cases  the  courts 
grant  to  officials  an  immunity  from  judicial  examination  of  the 
correctness  of  their  decisions  which  is  withheld  from  private 

'Kendall  v.  United  States  ex  rel.  Stokes,  12  Peters,  524  (1838).  But  such  ex- 
traordinary remedies  may  not  be  issued  against  officers  of  the  United  States  by  lower 
federal  courts,  outside  the  District  of  Columbia,  Mclntire  v.  Wood,  7  Cranch,  504 
(1813),  nor  by  state  courts,  McClung  v.  Silliman,  6  Wheaton,  598  (1821). 

'State  V.  Stone,  120  Mo.  428  (1894). 

*  State  V.  Governor,  5  Ohio  St.  528  (1856). 

♦Dennett,  Petitioner,  32  Me.  508(1851).  People  v.  Morton,  156  N.  Y.  136 
(1898). 

'Pennoyerz/.  McConnaughy,  140  U.  S.  I  (1891). 

•Kentucky  v.  Dennison,  24  Howard,  66  (i860),  setnble. 

''Though  the  government  may  not  be  sued,  save  by  its  own  consent,  suits  against 
its  officers  will  lie,  not  only  for  damages,  but  for  the  recovery  of  property,  even  where 
they  disclaim  all  personal  interest  and  insist  they  are  holding  it  solely  as  agents  of  the 
government.     United  States  v.  Lee,  106  U.  S.  196  (1882). 


222  POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXVII 

individuals.  No  private  individual  is  the  ultimate  authorit>^  to 
decide  questions  of  fact  on  which  depends  the  legality  of  his 
interference  with  the  rights  of  others.  This  position  is  ac- 
corded in  many  instances  to  the  executive  and  administrative 
agents  of  the  government.  In  so  far  as  this  is  true,  it  may  be 
contended  with  good  reason  that  there  is  a  realm  of  law  in 
which  the  decisions  are  based  upon  the  public  character  of  one 
of  the  parties  involved,  and  in  which  the  rules  applied  differ 
sufificiently  from  those  which  obtain  where  no  official  action  is 
in  issue  to  justify  us  in  describing  this  portion  of  the  law  as  ad- 
ministrative, in  contradistinction  to  the  private  law.  The  basis 
of  this  distinction  is  not  immunity  from  judicial  process,  but 
immunity  from  judicial  interference  with  respect  to  the  official 
action  taken  or  contemplated. 

2.  Power  to  determine  conditions  under  which  a  statute  is  to  be 

operative 

No  statute,  save  one  designed  to  operate  only  on  some  imme- 
diate and  specified  subject  matter,  can  be  drafted  with  full  fore- 
sight of  the  instances  in  which  its  provisions  will  be  applicable 
and  of  the  possible  circumstances  which  may  render  its  require- 
ments inadvisable.  It  is  therefore  often  highly  expedient  to 
vest  in  some  administrative  authority  a  discretion  as  to  its  en- 
forcement. As  a  matter  of  political  fact,  where  no  individual 
may  claim  such  enforcement  as  a  private  right,  such  discretion 
usually  exists,  for  the  executive  may  fail  to  enforce  the  law, 
however  mandatory  its  requirements.'  But  it  often  happens 
that  the  legislature  vests  this  discretion  expressly,  at  the  same 
time  setting  forth  the  conditions  by  which  its  exercise  shall  be 
governed. 

This  result  is  attained  by  the  declaration  that  the  application 
of  the  statute  or  of  one  of  its  alternative  provisions  shall  be  con- 
ditioned upon  the  existence  of  certain  facts,  to  be  ascertained 
by  those  to  whom  its  enforcement  is  entrusted.  The  propriety 
of  such  delegation  was  established  in  1S13,  when  the  court  sus- 

'  (/.  the  order  i>f  the  sccrelary  of  thi-  treasury  pcrniitting  free  entry  of  imports 
shipped  to  regions  suffering  from  fire  or  earth(|uake.  N(rui  ]\»i-  Times,  October 
13,  1910. 


No.  2]  SEPARA  TION  OF  PO  WERS  223 

tained  the  power  vested  in  the  president  to  ascertain  certain 
facts,  upon  whose  existence,  as  announced  by  his  proclamation, 
would  depend  the  revival  of  the  Non-Intercourse  Act.'  There 
was  no  discussion  of  the  point,  the  opinion  stating  simply : 
"  We  see  no  sufficient  reason  why  the  legislature  should  not  ex- 
ercise its  discretion  in  reviving  the  act  of  March  ist,  1809,  either 
expressly  or  conditionally,  as  their  judgment  should  direct." 

The  question  was,  however,  subjected  to  thorough  analysis 
in  a  decision  ^  which  sustained  the  power  vested  in  the  presi- 
dent to  suspend  the  provisions  of  the  tariff  act  relating  to  the 
to  the  free  introduction  of  certain  articles,  for  "  such  time  as  he 
shall  deem  just,"  when  he  shall  be  "  satisfied"  that  foreign 
governments  impose  on  those  articles  duties  which,  in  view  of 
their  free  introduction  into  the  United  States,  "  he  shall  deem 
to  be  reciprocally  unequal  and  unreasonable."  The  opinion 
refers  to  the  many  statutes  since  the  Brig  Aurora  decision  which 
vest  in  the  president  a  large  discretion  in  matters  arising  out  of 
the  execution  of  statutes  relating  to  trade  and  commerce,  and 
declares  that  this  practical  construction  of  the  Constitution,  as 
given  by  so  many  acts  of  Congress,  should  not  be  overruled, 
unless  upon  a  conviction  that  such  legislation  is  clearly  incom- 
patible with  the  law  of  the  land.  The  court  concedes  that  the 
principle  that  Congress  cannot  delegate  legislative  power  to  the 
president  is  "  universally  recognized  as  vital  to  the  integrity  and 
maintenance  of  the  system  of  government  ordained  by  the 
Constitution,"  but  asserts  that  the  statute  in  question  does  not 
"  in  any  real  sense"  invest  the  president  with  the  power  of  leg- 
islation. He  is  said  to  have  no  discretion  in  the  premises 
"  except  in  respect  to  the  duration  of  the  suspension,"  and  this 
limited  discretion  is  to  be  exercised  merely  to  enforce  the  policy 
established  by  Congress. 

As  the  suspension  was  absolutely  required  when  the  President  ascer- 
tained the  existence  of  a  particular  fact,  it  cannot  be  said  that  in 
ascertaining  that  fact  and  in  issuing  his  proclamation,  in  obedience  to 
the  legislative  will,  he  exercised  the  function  of  making  laws.     Legis- 

^The  Aurora  v.  United  States,  7  Cranch,  382. 
2  Field  V.  Clark,  134  U.  S.  649  (1891). 


224  POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXVII 

lative  power  was  exercized  when  Congress  declared  that  the  suspension 
should  take  effect  upon  a  named  contingency.  What  the  president 
was  required  to  do  was  simply  in  execution  of  the  act  of  Congress.  It 
was  not  the  making  of  law.  He  was  the  mere  agent  of  the  law-making 
department  to  ascertain  and  declare  the  event  upon  which  its  expressed 
will  was  to  take  effect. 

That  the  matter  may  be  clearer,  the  opinion  quotes  from  several 
decisions  of  state  tribunals : 

The  true  distinction  is  between  the  delegation  of  power  to  make  the 
law,  which  necessarily  involves  a  discretion  as  to  what  it  shall  be,  and 
conferring  authority  or  discretion  as  to  its  execution,  to  be  exercized 
under  and  in  pursuance  of  the  law.  .  .  .  The  legislature  cannot  delegate 
its  power  to  make  a  law ;  but  it  can  make  a  law  to  delegate  a  power  to 
determine  some  fact  or  state  of  things  upon  which  the  law  makes,  or 
intends  to  make,  its  own  action  depend.  To  deny  this  would  be  to 
stop  the  wheels  of  government. 

It  may  thus  be  taken  as  established  that,  whatever  the 
nature  of  the  powers  which  may  or  may  not  be  exercised  by 
the  executive,  it  may  be  vested  with  wide  powers  of  discretion 
in  determining  when  any  given  provision  of  a  statute  is  to  be 
operative.  In  practical  effect  this  differs  little  from  the  power 
to  decide  for  a  certain  period  what  the  law  shall  be. 

This  power  of  ascertaining  a  fact  on  which  is  to  depend  the 

operation  or  suspension  of  a  general   rule  for  all  future  cases 

within  its  scope  is  one  which  could  not  be  exercized  satisfactorily 

,    by  the  judiciary.    Unless  therefore  the  legislature  were  permitted 

\.  to  delegate  this  function  to  the  executive,  it  would  be  practically 
impossible  to  have  a  law  adaptable  to  such  constantly  changing 
circumstances  as  the  commercial  policies  of  foreign  nations. 
For  the  legislature,  even  if  always  in  session,  could  not  be  ex- 
pected, vyith  due  regard  to  its  other  duties,  to  alter  the  law  from 
day  to  day  under  the  possible  necessity  of  passing  special  enact- 
ments as  to  imports  from  each  of  the  many  exporting  countries 
of  the  world.  And  since  the  purpose  of  the  general  policy  is 
not  retaliation  but  the  securing  of  favorable  consideration  from 
other  commercial  nations,  the  executive  is  the  only  department 


No.  2]  SEPARA  TION  OF  PO  WERS  22  5 

adapted    to    the   employment  of    the   power    for    purposes   of 
negotiation. 

This  method  of  legislation  has  been  suggested  for  the  pur- 
pose of  securing  reciprocal  action  by  different  commonwealths 
in  social  legislation,  the  commonwealth  first  passing  any  statute 
providing  therein  that  it  shall  be  operative  only  upon  the  pass- 
ing of  similar  legislation  by  other  commonwealths,  as  ascer- 
tained and  proclaimed  by  the  governor.' 

3.  Power  to  tnake  regulations 

Not  only  the  power  of  ascertaining  facts  on  which  depends 
the  operation,  suspension  or  revival  of  a  statute,  but  also  power 
to  make  regulations,  containing  detailed  provisions  supplement- 
ary to  an  existing  law,  may  be  vested  in  an  administrative 
authority.  And  by  reasoning  analogous  to  that  already  con- 
sidered, this  is  shown  not  to  be  an  exercise  of  legislative  power. 

So  completely  is  the  power  recognized  that  in  Boske  v. 
Comingore  ^  a  regulation  was  sustained  with  no  discussion  either 
by  counsel  or  by  the  court  as  to  whether  it  was  a  delegation  of 
legislative  power.  A  regulation,  declared  Mr.  Justice  Harlan, 
"  should  not  be  disregarded  or  annulled  unless,  in  the  judgment 
of  the  court,  it  is  plainly  and  palpably  inconsistent  with  law." 
In  a  subsequent  case  a  statute  which  expressed  the  purpose  of 
excluding  from  the  country  the  lowest  grades  of  tea,  and  dele- 
gated to  the  secretary  of  the  treasury  the  power  to  establish  a 
uniform  standard,  was  held  merely  to  devolve  on  hirp  the  duty 
of  effectuating  the  legislative  policy  declared  in  the  statute,3 
Congress  was  said  to  have  legislated  on  the  subject  as  far  as 
was  reasonably  practicable,  leaving  to  executive  officials  from 
the  necessities  of  the  case  the  duty  of  bringing  about  the  result 
pointed  out  by  the  statute. 

Perhaps  the  boldest  and  at  the  same  time  the  most  incon- 
sistent language  of  any  court  on  this  topic  appears  in  Blue  v. 

'S.  McC.  Lindsay,  "Reciprocal  Legislation,"  Political  Science  Quarterly, 
vol.  XXV,  pp.  435-457- 
«i77U.  S.  459  (1900). 
'  Buttfield  V.  Stranahan,  192  U.  S.  470  (1904). 


226  POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXVII 

Beach,'  which  sustained  a  regulation  of  the  board  of  health  ex- 
cluding unvaccinated  pupils  from  the  public  schools,  under 
legislative  authority  to  take  action  to  prevent  the  spread  of  con- 
tagious diseases.  The  court  declared  that  the  legislature  could 
not  confer  on  any  body  or  person  the  power  to  determine  what 
the  law  should  be,  but  added : 

This  constitutional  inhibition  cannot  properly  be  extended  to  prevent 
the  grant  of  legislative  authority,  to  some  administrative  board  or  other 
tribunal,  to  adopt  rules,  by-laws,  or  ordinances  for  the  government  of 
or  to  carry  out  a  particular  purpose.  It  cannot  be  said  that  every 
grant  of  power  to  executive  or  administrative  boards  or  officials  involv- 
ing the  exercise  of  discretion  and  judgment  must  be  considered  a  dele- 
gation of  legislative  authority.  While  it  is  necessary  that  a  law,  when 
it  comes  from  the  law-making  power,  should  be  complete,  still  there 
are  many  matters  relating  to  methods  and  details  which  may  be  by  the 
legislature  referred  to  some  designated  ministerial  officer  or  body. 

Thus  in  the  same  breath  the  court  declares  that  a  law  must  be 
complete  when  it  comes  from  the  legislature,  and  that  it  may 
be  left  to  an  administrative  body  to  complete  it ;  that  there  may 
be  a  grant  of  legislative  authority  to  an  administrative  body, 
and  that  no  delegation  of  legislative  power  is  proper. 

Administrative  action  to  effectuate  the  general  purpose 
declared  by  statute  is  sometimes  authorized  by  granting  power, 
not  to  ascertain  facts  on  which  depend  the  general  operation 
or  suspension  of  some  provision,  or  to  frame  regulations  of 
general  application,  but  to  issue  orders  requiring  specific  action 
in  individual  cases ;  and  statutes  granting  such  powers  have 
been  sustained.  Thus  the  New  York  Court  of  Appeals  upheld 
a  statute  requiring  all  houses  of  a  certain  description  "  upon  di- 
rection of  the  board  of  health  "  to  be  supplied  with  water  "  in 
sufficient  quantity"'';  and  the  Supreme  Court  upheld  an  act  of 
Congress  empowering  the  secretary  of  war,  when  satisfied  after 
a  hearing  that  a  bridge  over  a  navigable  waterway  is  an  unrea- 
sonable obstruction  to  commerce,  "  to  require  such  changes  or 
alterations  as  will  render  navigation  reasonably  safe,  easy  and  un- 

'    155   Iiul.    121    (  1900). 

'  Health  Ueparlmcnl  v.  Rector  of  Trinity  Church,  145  N.  V.  32  ( 1895). 


No.  2]  SEPARATION  OF  POWERS  227 

obstructed."  '  Congress  might  clearly  itself  have  established  1 
general  requirements  for  all  bridges,  leaving  to  the  judiciary  the 
task  of  ascertaining  whether  any  specific  structure  violated  the 
statute;  or  it  could  have  legislated  in  detail  as  to  any  particular 
bridge  after  a  report  by  the  secretary  of  war.  In  effect,  its  action ' 
is  an  adoption  in  advance  of  recommendations  which  might 
have  been  made  in  such  a  report.  The  secretary  in  performing 
this  duty,  said  the  court,  will  only  execute  the  "  clearly  ex- 
pressed will  of  Congress,"  and  will  not  "  in  any  true  sense  " 
exercize  legislative  or  judicial  power. 

If  the  principle  for  which  the  defendant  contends  received  our  ap- 
proval, the  conclusion  could  not  be  avoided  that  executive  officers  in 
all  the  departments,  in  carrying  out  the  will  of  Congress  as  expressed 
in  statutes  enacted  by  it,  have  from  the  foundation  of  the  national 
government  exercized,  and  are  now  exercizing,  powers  as  to  mere  de- 
tails that  are  strictly  legislative  or  judicial  in  character.  .  .  .  Indeed,  it 
is  not  too  much  to  say  that  a  denial  to  Congress  of  the  right,  under  the 
Constitution,  to  delegate  the  power  to  determine  some  fact  or  the  state 
of  things  upon  which  the  enforcement  of  its  enactment  depends,  would 
be  "to  stop  the  wheels  of  government,"  and  bring  about  confusion,  if 
not  paralysis,  in  the  conduct  of  the  public  business. 

Three  years  later  the  court  reaffirmed  the  doctrine  in  even 
stronger  terms,  denying  the  right  of  judicial  reversal  of  the  ad- 
ministrative determination. 

It  is  apparent  from  these  citations  that  the  distinction  between 
powers  strictly  legislative  and  those  which  may  lawfully  be  del- 
egated to  executive  authorities  is  somewhat  tenuous.  The  rights 
of  individuals  may  be  controlled  by  the  judgment  and  discre- 
tion of  the  executive  quite  as  much  as  by  the  discretion  of  the 
legislature.  The  practical  necessities  of  government  have  com- 
pelled the  courts  to  overcome  the  difficulties  raised  by  the  doc-\\ 

^Union  Bridge  Company  v.  United  States,  204  U.  S.  364  (1907). 

^  Monongahela  Bridge  Company  v.  United  States,  216  U.  S.  177  (1910).  In  Com- 
monwealth V.  Sisson,  189  Mass.  247  (1905),  the  court  sustained  an  order  of  the  fish 
and  game  commissioners  directing  a  mill-owner  to  alter  the  construction  of  his  mill 
and  to  cease  to  accumulate  sawdust  on  the  bank  of  a  stream,  although  the  action  of 
the  commissioners  under  the  statute  was  termed  "  unquestionably  legislative  in  char- 
acter." 


228  POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXVII 

I  trine  of  the  separation  of  powers.     They  have  done  their  best. 

'  The  line  to  be  drawn,  declared  Chief  Justice  Marshall,'  is  be- 
tween those  important  subjects,  which  must  be  entirely  regulated 
by  the  legislature  itself,  and  those  of  less  interest,  in  which 
general  provisions  may  be  made  and  power  given  to  those  who 
are  to  act  under  such  general  provisions  to  fill  up  the  details. 
And  Mr.  Justice  Harlan  observed^  that  this  power,  which  he 
declared  to  be  based  upon  governmental  necessity,  is  limited  to 
the  determination  of  matters  which  in  the  opinion  of  the  court 
are  "  details."  Any  apparent  conflict  in  the  decisions  upon  the 
topic  will  be  due  to  disagreement  whether  any  given  matter  left 
to  administrative  decision  is  a  mere  detail  or  pertains  to  the 
substance  of  the  policy  of  the  statute.  Among  the  attempted 
delegations  which  have  been  held  improper  are  power  given  to 
party  committees  to  decide  whether  nominations  shall  be  made 
by  a  primary  or  by  a  convention  of  delegates  chosen  at  a  pri- 
mary,3  and  whether  nomination  shall  be  by  a  majority  or  plu- 
rality vote,3  and  power  to  fix  the  boundaries  of  election  districts.'* 
But  as  to  these  cases  it  may  be  said  that  the  matters  are  such 
as  admit  easily  of  a  uniform  rule  declared  by  the  legislature. 

In  so  far  as  the  delegation  of  legislative  power  is  concerned, 
the  doctrine  of  the  separation  of  powers  does  not  apply  to  the 
government  of  municipalities  ^  or  of  the  territories.     In  dealing 

^  with  such  recently-acquired  territory  as  the  Philippine  Islands 
and  Porto  Rico,  Congress  may  delegate  legislative  authority  to 
such  agencies  as  it  sees  fit,^  and  it  may  ratify  regulations  made 
by  the  military  authorities  ^  which  the  court  had  previously  held 
not  to  be  warranted  merely  by  the  fact  of  military  occupation 
after  cession.^  The  broad  doctrine  seems  to  be  declared  that 
Congress  may  ratify  any  regulation  which  it  could  previously 

'The  Brig  Aurora,  7  Cranch,  382  (181 3). 

*  Union  Bridge  Company  v.  United  States,  204  U.  S.  364.      Cf.  supra,  pp.  226,  227. 
'People  V.  Election  Commissioners,  221  111.  9  (1906). 

*  Rouse  V.  Thompson,  228  111.  522  (1907). 

*Cooley,  Constitutional  Limitations  (7th  ed.),  p.  265,  note  i. 
"Dorr  V.  United  States,  195  U.  S.  138  (1904). 
'United  States  v.  Ileinszen,  206  U.  S.  370  (1907). 
*Dooley  v.  United  Slates,  182  U.  S.  222  (1901). 


No.  2]  SEPARATION  OF  POWERS  229 

have  delegated  power  to  issue,  and  that  after  ratification  the 
regulation  is  valid  from  the  time  of  its  original  promulgation.' 
For  the  most  part  the  exercise  of  this  power  to  make  regu- 
lations is  conditioned  on  express  delegation  by  the  legislature. 
But  it  has  been  held  that  the  president,  by  virtue  of  his  con- 
stitutional power  as  commander-in-chief  of  the  army  and  navy, 
has  the  power  to  establish  provisional  courts  for  the  hearing 
and  determination  of  all  causes  arising  under  the  laws  of  the 
state  or  of  the  United  States  in  insurgent  territory  under  the 
control  of  the  United  States  military  forces  ^  and  power  to 
institute  regulations  providing  for  the  establishment  of  courts 
martial.3  The  qualification  "  in  the  absence  of  legislation 
specially  prohibitive,"  added  in  the  latter  opinion,  make  us 
doubtful,  however,  of  the  true  source  of  the  power.  But  this 
same  power  was  recognized  also  in  Dooley  v.  United  States/ 
where  the  regulations  of  the  commander  of  the  army  in  Porto 
Rico  and  subsequent  regulations  by  the  president,  establishing 
a  system  of  tariff  duties,  were  held  to  be  proper  exercises  of 
the  war  power.  But  this  power  was  said  to  become  limited  by 
the  subsequent  cession  of  the  island  by  treaty,  although  it  still 
remained  under  military  control.  The  position  of  the  court  is 
somewhat  vague.  It  is  declared  that,  from  the  necessities  of 
the  case,  the  right  to  administer  the  government  continued  after 
the  ratification  of  the  treaty  and  until  further  action  by  Con- 
gress. This  power  to  "  administer  "  was  said  to  be  "  absolute 
and  despotic,"  but  the  power  to  exercize  "  legislative  "  functions 
"  not  without  certain  restrictions — in  other  words  they  would 
not  extend  beyond  the  necessities  of  the  case."  And  it  was 
held,  therefore,  that  since  the  spirit  as  well  as  the  letter  of  the 
tariff  laws  of  Congress  admitted  of  duties  being  levied  only 
upon  importations  from  foreign  countries,  the  regulations  of 
the  commander  could  be  made  to  apply  only  to  goods  from  a 
foreign  country,  which  the  United   States  ceased  to  be  by  the 

'  United  States  v.  Heinszen,  206  U.  S.  370  (1907). 
'The  Grapeshot,  9  Wallace,  129  (1869). 
^Swaim  v.  United  States,  165  U.  S.  553  (1897). 
M82U.  S.  222  (1901). 


230  POLITICAL  SCIENCE  QUARTERLY         [Vol.  XXVII 

cession.  But  it  had  been  held  previously  that  the  authority  of 
the  military  commander  to  exact  duties  continued  after  the 
ratification  of  the  treaty  of  cession  until  notification  thereof 
reached  him." 

Outside  of  the  authority  inherent  in  the  commander-in-chief 
of  the  army  and  navy,  the  power  to  issue  regulations  is  condi- 
tioned on  legislative  delegation.  But  it  is  held  that  a  head  of  a 
department  may  have  the  power  by  implication  from  other 
powers  granted.  The  authority  of  the  secretary  of  the  treasury 
to  require  an  oath  to  be  taken,  in  certain  proceedings  before 
the  department,  was  held  to  follow  •'  by  implication  "  from  his 
power  "  to  adjust  and  settle  claims."  ^  The  court  laid  down  as 
a  general  principle,  "  in  the  construction  of  powers  of  this  sort, 
that  where  the  end  is  required,  the  appropriate  means  are 
given."  The  fact  that  the  Treasury  Department  had  for  a  long 
period  required  such  oaths  to  secure  the  government  against 
frauds,  without  objection  by  Congress,  was  held  to  show  de- 
cisively that  its  action  was  not  to  be  deemed  a  usurpation  of 
authority. 

In  St.  Louis  etc.  Railroad  Company  v.  Taylor,^  the  regula- 
tions sustained  were  framed  by  a  body  of  experts  having  no  offi- 
cial connection  with  the  government.  The  case  gave  damages 
for  personal  injury  where  the  basis  of  liability  was  the  failure 
of  the  defendant  to  comply  with  requirements  as  to  equipment 
fixed  by  the  American  Railway  Association.  The  decision  is 
not  an  express  authority  on  the  point  of  delegation  to  an  unof- 
ficial body,  because  the  regulations  of  the  association  were  to 
be  certified  to  the  Interstate  Commerce  Commission  and  to  be 
promulgated  by  them.  But  no  provision  appears  giving  the 
commission  authority  to  revise  the  regulations  certified  by  the 
association,  although  the  commission  was  vested  with  power  to 
make  its  own  regulations  in  case  the  association  failed  to  act. 
There  are,  however,  instances  of  the  delegation  of  the  taxing 
power  to  private  corporations,"*  and  of  the  delegation  of  power 

'  Cross  7^.  Harrison,  16  Howard,  164  (1853). 

'United  States  v.  Bailey,  9  Peters,  238  (1835).  '  210  U.  S.  281  { 190S). 

*  Anderson  v.   Draining  Company,  14  Ind.    199  (i860).     New  Orleans  Draining 
Company,  Praying  for  the  Confirmation  of  a  Tableau,  11  La.  Ann.  338  (1856). 


No.  2]  SEPARA  TION  OF  PO  WERS 


231 


to  appoint  public  officials  to  a  private  corporation,'  or  even  to 
unincorporated  associations.^ 

Such  then  are  some  of  the  powers  which  may  be  exercized 
by  executive  and  administrative  authorities,  be  they  legislative 
in  their  nature  or  not.  They  establish  a  rule  for  future  cases. 
They  constitute  an  integral  part  of  the  "  expression  of  the  will 
of  the  state."  3  And  the  administration,  in  performing  its 
function  in  this  expression  of  will,  is  no  mere  automaton  ma- 
nipulated by  the  legislature. 

Departmental  regulations  made  by  virtue  of  the  delegated 
ordinance  power  become  so  thoroughly  a  part  of  the  statute 
that  they  are  binding  upon  the  department  itself  as  well  as  upon 
the  individuals  with  whom  it  deals.  Thus  where  an  importer 
was  found  by  the  court  to  have  complied  with  regulations  estab- 
lished by  the  secretary  of  the  treasury,  under  which  he  was  to 
be  entitled  to  a  rebate  on  the  duty  levied  on  imported  raw 
materials  when  those  materials  became  part  of  manufactured 
goods  subsequently  exported,  it  was  held  that  this  right  could 
not  be  defeated  by  an  order  of  the  secretary  forbidding  the 
collector  to  proceed  in  accordance  with  the  regulations  estab- 
lished.4  The  importer  was  said  to  obtain  his  right  from  the  law, 
of  which  the  regulations  when  incorporated  were  a  part,  and  it 
was  held  that  the  secretary  could  not  by  a  subsequent  order  do 
what  he  could  not  do  by  regulations — repeal  or  annul  the  law. 

The  function  of  the  administration  is  thus  seen  to  be  sub- 
stantially similar  to  that  which  might  have  been  exercized  by 
an  expert  drafting  commission  before  the  law  was  finally  passed. 
The  legislation  when  complete  is  a  mosaic :  the  design  and  gen- 
eral plan  are  the  work  of  the  legislature ;  to  the  administration 

lOvershiner  v.  The  State,  156  Ind.  187  (1901). 

2  In  re  Bulger,  45  Cal,  553  (1873)  • 

'  Cf.  Goodnow,  Politics  and  Administration,  chapters  i  and  \\,  passim. 

^Campbell  z/.  United  States,  107  U.  S.  407  (1882).  But  cf.  Dunlap  z/.  United 
States,  173  U.  S.  65  (1899).  It  seems  that  regulations  relating  merely  to  the  orderly 
transaction  of  the  departmental  business  may  be  disregarded  by  the  department, 
when  the  effect  of  such  disregard  is  to  favor  rather  than  to  defeat  an  individual  right. 
Indian  Regulations,  3  Comp.  Dec.  218  (1896),  cited  in  Wyman,  Administrative 
Law,  sec.  4. 


232  POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXVII 

is  left  only  the  function  of  inserting  some  of  the  minor  pieces 
into  the  places  designated.  When  this  is  done,  the  work  of  the 
administration  is  completed,  its  discretion  exhausted ;  and  the 
mosaic  is  then  the  handiwork  of  the  legislature  beyond  the 
power  of  the  department  to  remove  directly  or  indirectly  any 
of  the  portions  it  had  been  their  function  to  inlay. 

But  although  the  department  is  bound  to  follow  its  own  regu- 
lations when  made,  it  may  be  vested  with  power  to  annul  or  to 
amend  them ;  or  the  rights  of  individuals  may  be  conditioned, 
not  on  compliance  with  the  regulations,  but  on  the  certificate 
of  the  department  that  such  compliance  has  taken  place,  mak- 
ing the  department  the  final  arbiter  of  the  right.' 

4.  Power  to  ascertain  facts  and  apply  rules  of  law  in 

controversies 

The  adjudication  of  disputed  questions  of  fact  and  law  in 
controversies  between  private  individuals  or  between  indi- 
viduals and  public  officials  is  a  function  commonly  committed 
to  the  judiciary ;  and  the  doctrine  of  the  separation  of  powers 
is  supposed  to  inhibit  the  exercise  of  what  is  regarded  as 
judicial  power  by  any  other  department  of  government  than  the 
judiciary,  unless  power  of  such  nature  is  expressly  vested  in 
non-judicial  bodies  by  the  constitution. ""  There  are  many  in- 
stances where  powers  delegated  to  administrative  bodies  by 
statute  have  been  held  invalid  because  deemed  judicial  in  nature. 

In  People  v.  Chase, ^  it  was  held  that  the  power  sought  to  be 
entrusted  to  an  administrative  officer  to  issue  certificates  of 
title,  which  with  certain  exceptions  should  be  conclusive 
against  the  world  as  to  the  ownership  of  the  land  in  question, 
was  void  as  a  delegation  of  judicial  power.  Since  the  statute 
contemplated  that  the  recorder  should  consider  and  apply  the 
law  to  facts  presented,  the  court  declared  that  "  it  would  be 
difficult  to  more  clearly  and  positively  confer  judicial  powers 
upon  a  person  unqualified,  under  the  constitution,  to  exercize 
those  powers,  than  is  done  by  this  law."  Other  Illinois  cases 
have    held   it    improper  to  vest  in  "  three  disinterested   men  " 

'  United  Stales  ex  rel.  Riverside  Oil  Company  v.  Hitchcock,  190  U.  S.  316  (1903). 
'Kilhourne  v.  Thompson,  13  Otto,  168  (1880).  *  165  111.  527  (1897). 


No.  2]  SEPARATION  OF  POWERS  233 

power  to  assess  damages  for  injuries  caused  by  cattle  running 
at  large/  or  to  empower  a  poundkeeper  to  sell  horses  im- 
pounded for  penalties  accrued  without  a  judicial  determination 
of  the  fact  that  the  penalties  are  due.^ 

But  the  courts  of  the  same  jurisdiction  recognize  that  minis- 
terial officers  may  be  vested  with  the  power  to  exercize  what  they 
term  "quasi-judicial  powers  or  discretions";  for  example,  in 
assessing  damages  and  benefits  for  special  assessments,  in  assess- 
ment of  damages  under  an  "  Occupying  Claimants  Law,"  3  in 
trial  of  rights  of  property  before  a  sTferiff  ■*  and  in  vai«ation  of 
property  for  taxes.-  This  doctrine  of  the  administrative  exer- 
cise of  "  quasi-judicial  "  powers  obtains  in  all  jurisdictions.  An 
examination  of  the  cases  will  disclose  that  these  differ  from  what 
are  regarded  as  judicial  functions  proper,  not  in  the  nature  of 
the  power  exercized,  but  in  the  nature  of  the  rights  which  the 
exercise  of  the  power  affects. 

In  fact  it  is  repeatedly  declared  that  administrative  officers 
may  in  certain  instances  exercize  judicial  functions.  On  this 
point  the  courts  have  been  more  frank  than  with  respect  to  the 
delegation  of  legislative  powers.  In  referring  to  powers  held 
to  be  lawfully  vested  in  the  commissioner  of  patents,  the  Su- 
preme Court  asserted  that,  although  he  is,  generally  speaking, 
an  executive  officer,  in  deciding  whether  a  patent  shall  issue  or 
not  he  acts  on  evidence,  finds  the  facts  and  applies  the  law,  and 
that  "  in  all  these  he  exercizes  judicial  functions."  ^  The  opinion 
quotes  further  from  Butterworth  z/.  Hoe  ^ :  "The  investigation 
of  every  claim  presented  involves  the  adjudication  of  disputed 
questions  of  fact,  upon  scientific  or  legal  principles,  and  is, 
therefore,  essentially  judicial  in  its  character."  These  de- 
cisions, it  is  true,  involved  the  question  whether  a  statute  giving 

1  Bullock  V.  Geomble,  45  111.  218  (1867). 

'Peppen  v.  Holmes,  44  111.  360(1867).  Cf.  Portland  v.  Bangor,  65  Me.  120 
(1876),  which  declared  invalid  a  delegation  to  overseers  of  power  to  commit  to  a 
workhouse  persons  declared  by  them  to  be  vagrants. 

^  Ross  V.  Irving,  14  111.  171  (1852). 

*Rowe  V.  Bowen,  28  111.  116  (1862). 

^Bureau  County  v.  Chicago  etc.  Railroad  Company,  44  111.  229  (1867), 

^United  States  v.  Duell,  172  U.  S.  576  (1899).  ^  112  U.  S.  50  (1884). 


2  34  POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXVII 

to  the  courts  an  appeal  from  the  decision  of  the  commissioner 
was  void  as  an  attempt  to  thrust  non-judicial  functions  on  the 
judiciary;  but  similar  language  occurs  in  a  decision  which  holds 
that  the  finding  of  the  secretary  of  the  interior  is  final,  and  its 
correctness  not  a  matter  for  the  courts.'  Mr.  Justice  Peckham 
declares  that  Congress  has  constituted  the  Land  Department, 
under  the  supervision  and  control  of  the  secretary  of  the  in- 
terior, a  special  tribunal  "  with  judicial  functions,"  to  which  is 
confided  the  execution  of  the  laws  which  regulate  the  purchase, 
selling,  care  and  disposition  of  the  public  lands. 

Some  courts,  however,  are  unwilling  to  put  the  matter  so 
frankly  and  prefer  to  play  the  familiar  game  of  juristic  logo- 
machy. In  holding  that  the  power  vested  in  a  board  of  medical 
examiners  to  license  physicians  was  not  a  power  appropriately 
belonging  to  the  judicial  department,  the  court  observed : 

Many  executive  officers,  even  those  who  are  spoken  of  as  purely  minis- 
terial officers,  act  judicially  in  the  determination  of  facts  in  the  per- 
formance of  their  official  duties  ;  and  in  so  doing  they  do  not  exercize 
judicial  power ,  as  that  phrase  is  commonly  used,  and  as  it  is  used  in 
the  Organic  Act  in  conferring  the  judicial  power  upon  specified  courts.* 

In  another  opinion  a  "  judicial  duty  within  the  meaning  of  the 
constitution  "  was  said  to  be  "  such  a  duty  as  legitimately  per- 
tains to  an  officer  in  the  department  designated  by  the  consti- 
tution as  judicial."  3 

Thus,  in  spite  of  repeated  judicial  assertions  that  executive 
and  administrative  authorities  can  not  exercize  judicial  power, 
it  is  manifest  that  many  of  the  functions  they  are  permitted  to 
perform  are  similar  in  nature  to  the  functions  exercized  by  the 
judiciary  and  long  recognized  as  belonging  peculiarly  to  that 
department  of  government.  In  disputes  between  individuals, 
bodies  other  than  judicial  determine  controverted  questions  of 
fact  and  apply  rules  of  law  to  facts  found  ;  and  in  subsequent 
judicial  proceedings  the  courts  often  decline  to  reexamine  the 

'United  States  ^Jr  r</.  Riverside  Oil  Company  r'.  Hitchcock,  190U.  S.  316(1903). 
'People  V.  Ilasbrouck,  11  Utah,  291  (1895). 
'State  V.  Hathaway,  115  Me.  36  (1892). 


No.  2]  SEPARA  riON  OF  PO  WERS  235 

evidence  to  ascertain  whether  in  their  opinion  a  conclusion  of 
fact  reached  by  an  administrative  body  is  correct/  and,  in  some 
instances,  even  decline  to  ascertain  whether  in  their  opinion  an 
administrative  application  of  law  to  facts  found  accords  with 
settled  principles  of  construction.^ 

But  the  determination  of  guilt  in  criminal  prosecutions  can 
never  be  committed  to  other  than  judicial  officers.  Congress 
attempted  in  the  Chinese  Exclusion  Act  to  vest  in  administra- 
tive authorities  the  power  not  only  to  exclude  aliens  but  to 
punish  them  for  unlawful  entry.  But  the  Supreme  Court  de- 
clared that,  although  summary  methods  might  be  employed  to 
exclude  those  who  had  unlawfully  entered, 

to  declare  unlawful  residence  within  the  country  to  be  an  infamous 
crime,  punishable  by  deprivation  of  liberty  and  property,  would  be  to 
pass  out  of  the  sphere  of  constitutional  legislation,  unless  provision 
were  made  that  the  fact  of  guilt  should  first  be  established  by  a  judicial 
trial.  It  is  not  consistent  with  the  theory  of  our  government  that  the 
legislature  should,  after  having  defined  an  offence  as  an  infamous  crime , 
find  the  fact  of  guilt  and  adjudge  the  punishment  by  one  of  its  own 
agents.' 

But  the  imposition  of  money  penalties  is  held  not  necessarily 
penal  in  nature,  even  where  exacted  by  reason  of  the  violation 
of  some  statute.'*  It  has  been  held  recently  that  the  secretary 
of  commerce  and  labor  may  enforce,  without  invoking  the  aid 
of  the  courts,  the  statutory  penalty  imposed  for  the  violation  of 
the  prohibition  against  introducing  to  the  country  aliens  with 
certain  specified  diseases. ^  Under  the  provisions  of  the  statute, 
the  fact  of  disease  existing  at  the  time  of  embarkation  was  ascer- 
tained and  the  consequent  liability  of  the  steamship  company 
determined  by  a  medical  officer  of  the  marine  hospital  service, 
and  the  penalty  was  then  exacted  as  a  condition  prerequisite  to 
granting  clearing  papers  for  the  vessel.     The  court  denied  that 

'Bartlett  v.  Kane,  16  Howard,  263  (1853). 

'  Bates  and  Guild  Company  v.  Payne,  194  U.  S.  106  (1904). 

'Wong  Wing  v.  United  States,  163  U.  S.  228  (1896). 

*Hepner  v.  United  States,  213  U.  S.  103  (1909). 

^Oceanic  Steam  Navigation  Company  v.  Stranahan,  214  U.  S.  320  (1909). 


236  POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXVII 

the  company  had  any  right  to  be  heard  as  to  the  admissibility 
of  any  individual  alien,  and  said  that 

the  plenary  power  of  Congress  as  to  the  admission  of  aliens  leaves  no 
room  for  doubt  as  to  its  authority  to  impose  the  penalty,  and  its  com- 
plete administrative  control  over  the  granting  or  refusal  of  a  clearance 
also  leaves  no  doubt  of  the  right  to  endow  administrative  officers  with 
discretion  to  refuse  to  perform  the  administrative  act  of  granting  a 
clearance,  as  a  means  of  enforcing  the  penalty  which  there  was  lawful 
authority  to  impose. 

This  decision  shows  that  the  distinction  between  judicial  and 
administrative  action  which  was  applied  in  Kentucky  and 
Indiana  Bridge  Company  v.  Louisville  and  Nashville  Railroad 
Company'  is  not  of  universal  validity.  It  was  there  asserted 
that  the  powers  conferred  upon  the  Interstate  Commerce  Com- 
mission are  not  judicial  because  its  action  upon  matters 
brought  before  it  "  is  neither  final  nor  conclusive;  nor  is  the 
commission  invested  with  any  authority  to  enforce  its  decision 
or  award."  Such  a  test  doubtless  furnishes  the  most  satis- 
factory basis  upon  which  to  sustain  many  instances  of  admini- 
strative action  alleged  to  be  judicial.  But  often  it  is  held  that 
the  decision  of  the  administration  is  final  and  conclusive  and 
will  not  be  reviewed  by  the  courts.  In  such  cases,  the  fact 
that  the  enforcement  of  the  decree  must  be  entrusted  to  a  mar- 
shal or  a  sheriff  rather  than  to  an  agent  of  the  administration 
seems  of  slight  importance. 

5.  Concbision 

The  esteem  in  which  the  framers  of  our  constitutions  held 
the  doctrine  of  the  separation  of  powers  fell  little  short  of  ven- 
eration. The  maintenance  of  its  integrity  they  deemed  essen- 
tial to  the  preservation  of  liberty.  And  our  courts  have  con- 
tinued to  worship  at  its  altar,  even  when  their  decrees  paid  but 
empty  honor  to  its  memory.  Reverence  for  the  theor)'  sur- 
vives even  the  refinements  of  reasoning  which  have  governed 
its  application.  But  its  vitality  is  to  be  determined  hy  the  acts 
which  may  be  done  in  its  name. 

'37  Fed.  Rep.  567  (1889). 


No.  2]  SEPARATION  OF  POWERS  237 

The  assumption  that  governmental  power  is  divisible  into 
mutually  exclusive  kinds  of  action  has  proved  inapplicable  to 
the  concrete  problems  of  government.  No  classification  of 
powers,  based  upon  the  nature  of  the  body  to  which  any  kind 
of  action  is  commonly  delegated,  can  furnish  mutually  exclusive 
kinds  of  power,  capable  of  differentiation  by  reason  of  their  in- 
trinsic qualities.  For  exercises  of  power,  demanding  identical 
mental  processes,  relating  to  kindred  subject  matters,  and  pro- 
ducing kindred  results,  are  committed  to  legislative,  judicial  and 
administrative  organs  by  the  very  constitutions  which  attempt  to 
translate  the  theory  of  the  separation  of  powers  into  a  rule  of 
law.  The  opinion  in  Kilbourne  v.  Thompson,'  which  held  invalid 
the  attempt  of  the  legislature  to  punish  for  contempt  in  a  cer- 
tain class  of  legislative  proceedings,  on  the  ground  that  the 
power  was  in  its  nature  judicial,  expressly  asserted  that  such 
power  might  be  exercized  in  other  classes  of  legislative  proceed- 
ings, such  as  impeachments,  where  judicial  power  was  expressly 
conferred  on  the  legislature  by  the  Constitution, 

And  if  we  attempt  to  classify  powers  according  to  their  na- 
ture, by  induction,  men  will  have  difficulty  in  agreeing  upon  the 
a  priori  basis  of  classification.  The  ascertainment  of  the  nature 
of  any  specific  action  taken  by  any  department  of  government 
otherwise  than  by  the  character  of  the  body  by  which  it  is 
performed  must  depend  upon  some  vague  notion  of  political 
theory  as  to  what  ought  to  be,  or  some  nebulous  speculation  as 
to  the  nature  of  the  mental  processes  demanded  in  the  solution 
of  each  particular  problem.  Most  acts  of  the  higher  executive 
authorities  require  both  the  formulation  of  a  general  rule  and 
the  determination  of  its  applicability  to  the  specific  case — pro- 
cesses usually  assumed  to  be  characteristic  of  legislation  and  ad- 
judication respectively.  And  even  the  lowest  administrative  act 
consists  not  solely  in  mechanical  execution  but  partly  in  the  de- 
termination of  the  applicability  of  some  general  rule. 

But  this  task  of  classification,  however  difficult,  is  forced  upon 
the  courts.  In  order  to  sustain  any  statutory  delegation  of 
power  to  the  administration,  they  are  compelled  to  hold  that  it 
is  neither  legislative  nor  judicial.     And  in  their  decisions,  the 

1  103  U.  S,  168  (1880).      Cf.  supra,  p.  215. 


238  POLITICAL  SCIENCE  QUARTERLY 

theory  of  the  complete  partition  of  the  functions  of  willing, 
adjudicating  and  applying  has  been  compelled  to  yield  to  the 
practical  exigencies  of  government. 

While  it  is  true  that  "  the  executive,  legislative  and  supreme  judicial 
powers  of  the  government  ought  to  be  forever  separate  and  distinct," 
it  is  also  true  that  the  science  of  government  is  a  practical  one  ;  there- 
fore, while  each  should  firmly  maintain  the  essential  powers  belonging 
to  it,  it  cannot  be  forgotten  that  the  three  coordinate  parts  constitute 
one  brotherhood,  whose  common  trust  requires  a  mutual  toleration  of 
the  occupancy  of  what  seems  to  be  a  "  common  because  of  vicinage," 
bordering  the  domains  of  each.* 

The  doctrine  of  the  separation  of  governmental  powers,  then, 
as  a  complete  denial  of  the  capacity  of  one  department  of  gov- 
ernment to  exercize  a  kind  of  power  assumed  to  belong  pecu- 
liarly to  one  of  the  others,  does  not  obtain  in  our  public  law 
beyond  the  confines  of  the  printed  page.  But  from  the  point 
of  view  of  the  individual  whose  rights  are  affected  by  govern- 
mental action,  it  protects  him  in  most  of  his  dealings  with 
governmental  authority  from  the  arbitrary  power  of  a  single 
official  or  group  of  officials,  and  secures  to  him  in  most  instances 
the  right  not  to  be  disturbed  save  by  the  concurrent  action  of 
two  or  more  of  the  different  departments  among  whom  govern- 
mental power  is  apportioned.  The  cases  in  which  such  concur- 
rence is  not  secured  are  confined  to  those  spheres  of  govern- 
mental action  where  individual  privilege  rather  than  individual 
right  is  at  stake, ^  or  where  the  exigencies  of  government  are 
deemed  by  the  court  so  important  that  the  interest  of  the  in- 
dividual must  not  defeat  the  collective  interest  of  the  whole 

people  of  whom  he  is  a  part.^ 

Thomas  Reed  Powell. 

Columbia  University. 

'  Bynum,  J.,  in  Brown  v.  Turner,  70  N.  C.  93  (1874). 

*  Importation  of  goods:  Buttfield  v.  Stranahan,  192  U.  S.  470  (1904).  Use  of 
the  mails:  Bates  and  Guild  Company  v.  Payne,  194  U.  S.  106  ( 1904).  Acquisition  of 
pulilic  lands:  Smelting  Company  7'.  Kemp,  104  U.  S.  636(1881).  Enjoyment  of 
corporate  priviietjes :  Rea^jan  ~<>.  Farmers  Loan  and  Trust  Company,  154  U.  S.  362 
(1X94). 

'Taxation:  Hilton  v.  Merrilt,  no  U.  S.  97  (1S84).  Exclusion  of  aliens:  United 
Slates  V.  Ju  Toy,  198  U.  S.  253  (1905).  Troteclion  of  pulilic  health:  Valentine  v. 
Enjjlewood,  76  N.   J.  Law,  509  (190S). 


SEPARATION  OF  POWERS 

ADMINISTRATIVE   EXERCISE   OF  LEGISLATIVE 

AND  JUDICIAL  POWER 


II 

PRINCIPLES  OF  JUDICIAL  REVIEW 


BY 

THOMAS  REED  POWELL 


REPRINTED  FROM  POLITICAL  SCIENCE  QUARTERLY 
Vol.  XXVIII,  No.  i 


NEW  YORK 
PUBLISHED  BY  GINN  &  COMPANY 

1913 


SEPARATION  OF  POWERS :  ADMINISTRATIVE  EXER- 
CISE OF  LEGISLATIVE  AND  JUDICIAL  POWER' 

II.      PRINCIPLES  OF  JUDICIAL  REVIEW 

/.     Introduction 
I"' 

ALTHOUGH  in  many  instances  administrative  authorities 
may  perform  functions  which  cannot  be  differentiated 
from  those  commonly  exercised  by  the  legislature  or  by 
the  judiciary,  it  is  not  to  be  inferred  that  the  attempt  to  trans- 
mute the  theory  of  the  separation  of  powers  into  a  rule  of  law 
has  been  wholly  ineffective.  Inroads  upon  the  theory  have  been 
permitted  only  where  the  courts  find  some  over-ruling  govern- 
mental necessity  or  where  the  interest  subjected  to  administrative 
interference  is  not  within  the  fold  of  constitutional  protection. 
It  is  true  that  in  most  of  the  instances  where  the  doctrine  has 
been  invoked  in  judicial  proceedings  to  resist  the  action  of  ad- 
ministrative authorities,  the  contention  has  not  been  sustained. 
But  this  is  due  to  the  fact  that  the  legislatures  have  been  cau- 
tious in  not  extending  the  power  of  the  administration  beyond 
the  boundaries  which  the  courts  have  described.  The  subject 
matters  which  continue  to  be  dealt  with  by  courts  and  legisla- 
tures far  exceed  both  in  number  and  importance  those  committed 
to  the  care  of  administrative  authorities.  With  the  increasing 
complexity  of  social  and  economic  conditions  and  the  conse- 
quent widening  of  the  field  of  governmental  activity,  the  scope 
of  administrative  power  is  being  constantly  enlarged.  But  the 
hand  of  the  court  is  always  at  the  throttle  to  stay  any  advance 
which  in  its  opinion  is  an  unwarranted  invasion  of  private 
right.  Where  for  any  reason  the  power  vested  by  statute  in  an 
administrative  body  is  deemed  to  exceed  that  permitted  by  the 
Constitution,  the  courts  will  treat  any  action  taken  under  the 
delegation  as  entirely  invalid." 

'  The  first  pari  of  this  study  was  printed  in  the  Political  Scikncb  Quarterly, 
vol.  xxvii,  pp.  215-238. 

'Portland  v.   Banpor,  65  Me.   120(1876);   cf.  part   i,  of  this  study,  loc  ci/.,  p. 

34 


SEPARA  TION  OF  PO  WERS  3  5 

Even  where  the  courts  concede  that  the  administration  has 
power  to  act,  the  specific  action  taken  remains  subject  to  judicial 
supervision.  A  distinction  is  to  be  noted,  however,  between 
the  relief  which  may  be  granted  in  reviewing  an  administrative 
regulation,  which  promulgates  a  general  rule  to  govern  all 
future  instances  that  may  arise  within  the  scope  of  its  pro- 
visions, and  the  relief  available  when  the  court  is  considering 
an  administrative  finding  of  fact  or  application  of  law  to  facts 
found. 

Where  the  administrative  action  is  in  the  nature  of  an 
adjudication,  the  court  may  reexamine  the  evidence  and  deter- 
mine the  fact  for  itself '  or  apply  some  other  rule  of  law  than 
that  adopted  by  the  administration.^  It  may  itself  do  the  very 
work  entrusted  to  the  administration,  if  in  its  opinion  this  work 
was  improperly  performed.  But  if  for  any  reason  the  court 
disapprove  of  an  administrative  regulation,  judicial  relief  must 
be  confined  to  nullifying  the  administrative  action  and  treating 
the  matter  in  litigation  as  though  no  provisions  beyond  those 
contained  in  the  statute  had  been  promulgated  or  authorized. 
The  court  cannot  put  forth  a  new  regulation,  although  its 
opinion  may  indicate  what  new  regulation  would  be  sustained. 
If  the  provisions  of  the  regulation  are  separable,  the  regulation 
may  of  course  be  declared  invalid  in  part  only.  In  so  far  as 
prosecutions  for  violation  are  concerned,  special  orders  of  indi- 
vidual application  are  controlled  by  the  same  considerations 
which  apply  to  general  regulations.  The  court  can  merely 
declare  the  order  void  or  valid.  If,  however,  the  administration 
is  seeking  judicial  enforcement  of  some  order  directing  specific 
remedial  action,  the  court  is  not  confined  to  the  two  alternatives 
of  granting  the  decree  prayed  for  or  of  denying  all  relief. 
Such  part  of  the  order  as  the  court  deems  excessive  may  be 
regarded    as  separable.     The    court    may,  in    practical    effect, 

233,  n.  2.  Wong  Wing  v.  United  States,  163  U.  S.  228  (1896);  cf.  part  i,  loc  eit.^ 
p.  235,  n.  3. 

1  State  ex  rel.  McCleary  v.  Adcock,  206  Mo.  550  (1907).  Miller  v.  Horton,  152 
Mass.  540  (1891). 

^Johnson  v.  Towsley,  13  Wallace,  72  (1871).  Turner  v.  Williams,  194  U.  S. 
279  (1904). 


26  POLITICAL  SCIENCE  QUARTERLY        [Vol.  XXVIII 

modify  rather  than  annul  the  administrative  order/  which 
amounts  to  much  the  same  thing  as  annulling  it  and  issuing  a 
new  order  in  its  place. 

The  reason  underlying  this  distinction  must  be  as  follows. 
The  promulgation  of  regulations  partakes  of  the  nature  of 
action  commonly  exercised  by  legislative  bodies.  Power  to 
take  such  action  may,  from  the  point  of  view  of  actual  practice 
though  not  in  judfcial  theory,  be  delegated  to  administrative 
bodies,  but  it  may  not  be  exercised  by  the  courts,  save  in  cer- 
tain matters  relating  to  judicial  procedure.  On  the  other  hand, 
the  function  of  reaching  conclusions  of  fact  from  evidence 
submitted  and  that  of  applying  rules  of  law  partake  of  the 
nature  of  action  regularly  exercised  by  judicial  authorities. 
Though  an  order  directing  specific  remedial  action  in  respect 
to  a  designated  concrete  thing  may  be  issued  by  a  legislature, 
such  orders  are  also  issued  by  the  courts  where  the  general 
requirements  of  a  statute  have  been  violated.  In. these  realms, 
therefore,  the  courts  may  substitute  their  own  judicial  action 
for  what  they  regard  as  the  improper  action  of  a  judicial  nature 
taken  by  the  administration. 

2.      Judicial  control  over  administrative  regulations 

An  ordinance  or  regulation  will  of  course  always  be  held 
invalid  for  any  reason  that  would  nullify  the  same  provisions 
in  a  statute.  In  Illinois  Central  Railroad  Company  v.  Mc- 
Kcndrec^*  a  quarantine  regulation  of  the  secretary  of  agri- 
culture was  held  invalid  because  sufficiently  broad  to  apply  to 
commerce  wholly  within  a  state.  Regulations  made  in  the 
exercise  of  the  police  power  are  regarded  with  the  same  critical 
eye  cast  upon  statutes.  In  State  v.  Speyer,^  the  regulation  of 
a  state  board  of  health  prohibiting  any  pig-pen  within  one 
hundred  feet  of  an  inhabited  dwelling  was  held  void,  on  the 
ground  that  it  reached  beyond  the  scope  of  necessary  protection 
and  prevention  into  the  domain  of  restraint  of  lawful  business 
and  use  of  property. 

'  Ilcallh  Department  v.  Dassori,  81  N.  Y.  Stale  Reporter  (47  N.  V.  .Supp.),  641 
(1897).  Health  Department  v.  Rector  of  Trinity  Church,  145  N.  V.  32(1895), 
sembU. 

»  203  U.  S.  514  { 1906).  »  67  Vt.  502  (1895). 


No.  I]  SEPARATION  OF  POWERS  2 7 

In  fact,  these  regulations  of  administrative  bodies  are  ac- 
corded even  less  judicial  respect  than  that  given  to  a  statute. 
In  Potts  V.  Breen '  it  was  held  that,  in  the  absence  of  express 
authority  from  the  legislature,  a  certain  rule  of  the  state  board 
of  health  was  invalid  because  unreasonable.  The  courts  exer- 
cise the  same  supervision  over  the  regulations  of  such  state 
boards  as  over  municipal  ordinances.  The  power  to  declare 
these  void,  when  in  the  opinion  of  the  court  they  are  unreason- 
able, has  long  been  exercised.  It  is  often  justified,  however, 
on  the  ground  that  the  legislature  cannot  be  presumed  to  have 
delegated  authority  to  do  a  thing  unreasonable,  the  court  seem- 
ing to  assume  that  the  judicial  estimate  of  unreasonableness 
was  the  test  in  the  subconsciousness  of  the  legislature. 

Since  the  regulations  of  the  administration  are  to  supplement 
the  provisions  of  some  statute  and  the  power  to  make  them 
rests  upon  legislative  grant,  it  is  clear  that  the  exercise  of  the 
power  must  not  transcend  the  authority  delegated.  In  Little  v. 
Barreme,''  a  naval  officer  who  had  seized  a.  vessel  on  its  voyage 
from  a  French  port,  under  a  regulation  of  the  secretary  of  the 
navy  ordering  seizure  of  vessels  sailing  to  or  from  a  French 
port,  was  held  not  protected  from  civil  liability  for  his  act,  when 
the  statute  by  virtue  of  which  the  secretary  issued  his  orders 
authorized  the  president  to  instruct  commanders  to  seize  vessels 
only  when  these  were  going  to  a  French  port.3  So  also  where 
the  statute  made  provision  for  the  free  introduction  of  animals 
imported  for  breeding  purposes,  "  upon  proof  thereof  satisfac- 
tory to  the  secretary  of  the  treasury  and  under  such  regulations 
as  he  may  prescribe,"  the  court  held  invalid  a  provision  in  the 
regulations  that  the  collector  must  be  satisfied  that  the  animals 
are  of  superior  stock,-*  as  an  attempt  to  incorporate  a  limitation 
into  the  statute  where  it  clearly  intended  to  include  animals  of 
all  classes.  The  regulation  was  in  effect  an  amendment  of  a 
revenue  law,  which  could  be  made  only  by  Congress. 

Regulations  may  not    impair    rights    which    flow    from    the 

1167111.67(1897).  ^2  Cranch   170  (1804). 

^  Cf.  Hendricks  v.  Gonzales,  67  Fed.  351  (1895). 
*  Morrill  v.  Jones,  106  U.  S.  466  (1882). 


38  POLITICAL  SCIENCE  QUARTERLY        [Vol.  XXVIII 

Statute  by  imposing  requirements  inconsistent  with  its  provi- 
sions. It  has  been  held  that  the  department  cannot,  upon 
discovering  that  the  color  test  prescribed  by  statute  for  deter- 
mining the  standard  of  sugar  is  fallacious,  remedy  the  defect 
by  substituting  a  chemical  test ;  for  Congress  alone  has  au- 
thority to  levy  duties.'  And  where  a  statute  required  oath  as 
to  contemplated  alienation  upon  making  entry  for  public  land 
and  failed  to  require  such  oath  at  the  time  of  securing  patent, 
though  prescribing  oath  on  other  matters,  it  was  held  to  be 
manifest  from  this  omission  that  the  motives  of  the  applicant, 
though  material  on  making  entry,  were  not  significant  at  the 
time  of  receiving  patent;  and  the  requirement  of  such  oath  at 
the  later  time  was  held  void  because  it  defeated  the  right  given 
by  the  statute  to  make  contract  for  alienation  in  the  interim.' 

Compliance  with  regulations  less  stringent  than  the  require- 
ments of  the  statute  will  not  excuse  an  individual  as  against  the 
government  from  full  compliance  with  the  law.  In  an  action 
against  the  collector,  under  a  statute  permitting  suit  if  protest 
be  filed  within  ten  days  from  the  time  of  the  liquidation  of  the 
duties,  it  was  material  when  such  liquidation  took  place.  The 
protest  complied  with  the  regulations  of  the  secretary  of  the 
treasury,  which  regarded  such  liquidation  as  not  complete  in 
the  case  of  goods  in  bond  until  their  final  withdrawal.  The 
court  held  that  this  was  erroneous,  and  that  the  importer  who 
had  complied  with  the  regulations  had  not  complied  with  the 
law.3 

A  curious  modification  of  the  doctrine  that  regulations  incon- 
sistent with  the  delegation  are  void  is  suggested  in  a  dictum  in 
La  Bourgogne,''  where  the  statute  under  consideration  authorized 
the  board  of  supervising  inspectors  to  make  regulations  as  to 
the  equipment  of  vessels  with  life-boats,  rafts  etc.,  and  provided 

'  Merritt  v.  Welsh,  104  U.  S.  694  (1881). 

'Williamson  v.  United  .States,  207  U.  .S.  425  (1908).  For  examples  of  rulings  by 
the  law  advisers  of  various  executive  departments  as  to  regulations  and  usages  in  con- 
flict with  statutory  provisions,  (f.  Wyman,  Administrative  Law,  chapter  \\\y  passim. 

'  Merritt  v.  Cameron,  137  U.  .S.  542  (1890). 

*  210  U.  S.  95  (1908).  .Mso  sub  notn.  Deslions  v.  La  Compagnie  (.ientiralc  Traus- 
atlantique. 


No.  I]  SEPARATION  01  POWERS  ^O 

that  such  regulations,  when  approved  by  the  secretary  of  the 
treasury,  should  have  the  force  of  law.  Failure  to  comply  with 
the  law  subjected  the  company  to  a  penalty  and  also  deprived 
it  of  the  right  to  certain  limitations  on  its  liability  for  dam- 
ages in  case  of  accident.  In  the  case  at  bar,  the  company 
had  complied  with  the  regulations,  but  it  was  contended  that 
the  regulations  were  inconsistent  with  the  statute  and  that  the 
company  had  therefore  not  complied  with  the  law.  The  court 
was  of  opinion  that  the  regulations  were  not  inconsistent  with 
the  statute,  but  observed : 

Even,  however,  if  it  were  otherwise,  as  compliance  on  the  part  of  the 
petitioner  with  the  regulations  adopted  by  the  board  was  compelled  by 
law,  it  cannot  be  that  upon  it  was  cast  the  duty  of  disobeying  the 
regulation  at  its  peril,  thus,  on  the  one  hand,  subjecting  it  in  case  of 
non-compliance  to  the  infliction  of  penalties,  and,  on  the  other  hand, 
if  it  fully  complied  with  the  regulations,  imposing  a  liability  upon  the 
assumed  theory  that  there  had  been  a  violation  of  law. 

It  would  thus  appear  that  third  parties  cannot  take  advantage 
of  inconsistency  between  the  statute  and  the  regulations  when 
they  have  been  complied  with  by  those  whose  conduct  they  are 
to  govern,  although  the  latter  may  allege  such  inconsistency  as 
an  excuse  for  non-compliance,  or  after  compliance  may  find  it 
a  bar  to  the  acquisition  of  rights  claimed  from  the  government 
under  the  statute.  If,  however,  the  government  may  enforce  a 
penalty  for  violation  of  the  law  after  there  has  been  compliance 
with  the  regulations,  it  may  through  its  own  officers  contrive 
for  the  individual  the  same  unpleasant  dilemma  from  which  the 
court  desired  to  spare  him  in  La  Bourgogne.' 

When  the  regulation  is,  in  effect,  merely  the  interpretation  of 
the  statute,  the  court  will  determine  for  itself  whether  the  inter- 
pretation is  correct.^     In  United  States  v.  Symonds,^  where  the 

^  Cf.  infra,  p.  44. 

''■  Though  the  courts  often  declare  that  great  respect  is  due  to  the  interpretation  of 
the  administration,  and  sometimes  even  that,  when  long  continued,  it  "must  be  re- 
garded as  absolutely  conclusive  " — United  States  v.  Hill,  120  U.  S.  169  {1887) — the 
actual  results  of  the  decisions  justify  the  assertion  that  this  is  merely  a  presumption, 
which  serves  as  a  convenient  crutch  to  aid  the  courts  when  they  desire  to  sustain  the 


40  POLITICAL  SCIENCE  QUARTERLY        [Vol.  XXVIII 

Statute  provided  that  no  service  should  be  regarded  as  sea  ser- 
vice unless  performed  at  sea  under  the  orders  of  the  depart- 
ment, the  regulations  of  the  department  declared  service  on 
practice  vessels  in  harbors  and  inlets  to  be  shore  service.  The 
court  holds  that  such  service  was  in  fact  performed  at  sea, 
within  the  meaning  of  the  statute,  and  that  the  regulations  of 
the  department  could  not  convert  it  into  shore  service. 

The  authority  of  the  secretary  to  issue  orders,  regulations  and  instruc- 
tions, with  the  approval  of  the  president,  in  reference  to  matters  con- 
nected with  the  naval  establishment,  is  subject  to  the  condition  neces- 
sarily implied,  that  they  must  be  consistent  with  the  statutes  which 
have  been  enacted  by  Congress  in  reference  to  the  navy.  He  may, 
with  the  approval  of  the  president,  establish  regulations  in  execution 
of,  or  supplementary  to,  but  not  in  conflict  with,  the  statutes  defining 
his  power  or  conferring  rights  upon  others.' 

Finally,  the  regulations  must  relate  to  matters  which  the 
court  regards  as  "  mere  details."  As  to  what  is  a  mere  detail 
and  what  relates  to  the  substance  of  the  result  sought  by  the 
legislation,  the  courts  are  more  critical  in  criminal  prosecutions 
than  in  civil  controversies.  It  would  seem  that  some  regulations 
are  considered  sufficiently  valid  to  support  acts  done  under 
them,  and  therefore,  in  a  sense,  "  have  the  force  of  law  "  and 
are  "  prescribed  by  law,"  and  yet  are  not  regulations  "  pre- 
scribed by    law "    when    it    is    sought    to    base  upon  them    a 

contention  of  the  administration,  but  which  is  never  permitted  to  fetter  them  when  in- 
clined towards  an  opposite  conclusion.  In  Houghton  v.  Payne,  194  U.  S.  88  ( 1904), 
the  court  sustained  the  ruling  of  the  postmaster-general  classifying  publications  in  the 
Riverside  Literature  Series  as  books,  although  for  sixteen  years  his  predecessors  had 
classified  them  as  periodicals  and  Congress,  though  often  urged  by  the  department  to 
amend  the  statute,  had  declined  to  do  so.  "  We  regard  publications  of  the  River- 
side Literature  Series  as  too  clearly  within  the  denomination  of  books  to  justify  us  in 
approving  a  classification  of  them  as  periodicals,  notwithstanding  the  length  of  time 
such  classification  obtained.  ...  It  is  well  settled  that  it  is  only  when  the  language 
of  the  statute  is  ambiguous  and  susceptible  of  two  reasonable  interpretations  that 
weight  is  given  to  the  doctrine  of  contemiioraneous  construction.  Contemporaneous 
construction  is  a  rule  of  interpretation,  but  it  is  not  an  absolute  one.  It  does  not 
preclude  an  inquiry  by  the  courts  as  to  the  original  correctness  of  such  construction. 
A  custom  of  the  dei>artmenl,  however  long  continued  by  successive  othcers,  must  yield 
to  the  positive  language  of  the  statute." 

>  I20U.  .S.  46  (1887). 


No.  I]  SEPARATION  OF  POWERS  4 1 

criminal  prosecution  under  a  statute  providing  penalties  for 
"  failure  to  do  the  things  required  by  law."  '  In  the  case  cited, 
a  wholesaler  in  oleomargarine  was  indicted  for  failure  to  keep 
such  books  as  were  prescribed  by  the  regulations.  The  statute 
required  mamifactiirers  to  keep  such  books  as  the  department 
might  prescribe  but  made  no  such  requirement  as  to  wholesalers. 
The  court  seemed  to  regard  the  departmental  regulations 
specifying  the  books  to  be  kept  by  wholesalers  as  authorized  by 
the  general  power  to  prescribe  regulations,  but  held  that  the 
statute  did  not  with  sufficient  distinctness  make  the  failure  so 
to  do  a  criminal  offence.  In  another  case,^  however,  where 
the  statute  required  packages  of  oleomargarine  to  be  marked 
and  branded  as  the  commissioner  of  internal  revenue  should 
prescribe,  and  provided  a  penalty  for  packing  oleomargarine  in 
any  manner  contrary  to  law,  it  was  held  that  the  criminal 
offence  was  "  fully  and  completely  defined  by  the  statute,"  and 
that  the  designation  by  the  commissioner  of  the  particular 
marks  and  brands  to  be  used  was  a  "  mere  matter  of  detail." 
The  distinction  between  this  and  the  Eaton  case  was  said  to  be 
that  the  requirements  of  the  department  there  related  to 
matters  which  were  in  no  way  referred  to  in  the  various  sections 
of  the  statute  prescribing  the  duties  resting  upon  manufacturers 
or  dealers  in  oleomargarine,  while  here  the  statute  expressly 
required  the  acts  to  which  the  regulations  referred. 

Two  cases  more  difficult  to  distinguish  have  been  decided  in 
the  lower  federal  courts.  In  the  earlier  of  these  cases  ^  the 
statute  authorized  the  secretary  of  war  to  make  regulations  to 
protect  the  navigation  of  rivers,  and  provided  that  violation  of 
the  regulations  should  constitute  a  misdemeanor.  The  secre- 
tary made  a  regulation  as  to  the  speed  of  vessels.  The  court 
held  that  the  .secretary  did  not  make  any  act  punishable,  but 
merely  promulgated  a  rule — that  it  was  the  statute  which  made 
the  act  punishable.     In  a  later  case  "*  the  statute  authorized  the 

I  United  States  v.  Eaton,  144  U.  S.  677  (1892). 
«  In  re  Kollock,  165  U.  S.  526  (1897). 
'United  States  v.  Breen,  40  Fed.  402  (1889). 
*  United  States  v.  Matthews,  146  Fed.  306  (1906). 


.2  POLITICAL  SCIENCE  QUARTERLY         [Vol.  XXVIII 

secretary  of  the  interior  to  make  regulations  as  to  the  occu- 
pancy of  certain  public  lands,  the  violation  of  which  was  to 
be  punished  as  provided  in  another  statute.  The  regulations 
forbade  sheep-grazing  without  a  permit.  The  court  held  that 
the  grazing  of  stock  had  been  prohibited  by  no  congressional 
act,  that  the  prohibition  rested  entirely  on  the  regulation  of  the 
secretary  and  amounted  to  an  unauthorized  exercise  of  legis- 
lative power,  since  it  was  the  secretary  who  had  designated 
what  should  constitute  the  crime.  It  would  seem  that  in  the 
earlier  case  it  might  have  been  said  as  easily  that  excess  of 
speed  was  prohibited  by  no  statute,  and  that  the  secretary  alone 
had  designated  what  should  constitute  the  crime. 

The  decisions  on  this  topic  cannot  be  reconciled  on  any  line 
of  general  principle.     In  the  last  analysis  the  distinctions  are 
those  of  degree.     A  test  which  may  prove  helpful  is  to  ask 
whether   the   requirements   of    the   regulations    should    clearly 
have  been  anticipated  from  a  reading  of  the  statute.     It  is  clear 
that  the  statute  need  not  state  in  detail  every  circumstance  or 
contingency  under  which  an  act  prohibited  by  law  shall  consti- 
tute a  criminal  offence.     Thus  a  defendant  may  be  punished 
under  a  statute   penalizing  false  swearing,  where  the  oath  in 
question  was  taken  before  a  local  land  officer  in  a  contest  in 
respect  to  the  validity  of  a  homestead  entry,  as  prescribed  by 
departmental  regulations,  although  such  proceedings  in  a  con- 
test as  to  homestead  entries  were  not  specifically  authorized  by 
any  statute.'     This  was  said  to  be,  not  a  case  where  the  defend- 
ant was  punished  for  the  violation  of  a  departmental  regulation, 
but   merely  an   instance  where    the   regulations^  provided   the 
place,  occasion  and  opportunity  for  the  defendant  to  violate 
the  statute  against  perjury.     In  another  case  -  the  defendant 
was  punished  for  false  swearing  in  an  affidavit  before  a  state 
magistrate,  where  such  oath  was  prescribed  by  a  departmental 
regulation  issued  under  general  authority  to  "  adjust  and  settle 
claims,"  although   no  express  authority  was  given  by  any  fed- 
eral statute  to  any  state  magistrate  to  administer  such  an  oath. 

'.Caha  V.  United  States,  152  U.  S.  211  (1894). 
'United  States  v.  Bailey,  9  Peters  (U.   S.)  238  (1835). 


No.  I]  SEPARATION  OF  POWERS  ^2 

and  the  court  doubted  whether  a  state  magistrate  could  be  com- 
pelled by  any  federal  authority  to  administer  an  oath. 

3 .  Effect  of  the  failure  of  the  administration  to  take  action 

Although  in  the  Campbell  case  the  Supreme  Court  declared 
that  the  administration  may  not,  by  disregard  of  its  own  regula- 
tions, withhold  the  action  which  follows  by  law  from  the  com- 
pliance of  an  individual  therewith,'  it  may  defeat  a  right  condi- 
tioned on  compliance  with  regulations  by  its  failure  to  make  any 
regulations  whatever.  Thus,  where  a  statute  was  construed  as 
granting,  not  a  right  in  prcesenti  to  all  persons  who  might  after 
its  passage  use  alcohol  in  the  arts,  but  a  right  conditioned  on 
use  in  compliance  with  regulations  to  be  prescribed,  the  court 
regarded  the  legislation  as  incomplete  until  regulations  were 
made  to  fill  in  its  details,  in  the  absence  of  which  the  right  of 
the  manufacturer  could  not  so  vest  as  to  create  a  cause  of  action 
by  reason  of  the  unregulated  use.^  The  comment  on  the 
Campbell  case  indicates  that  the  decision  there  would  not  have 
been  different  had  it  involved  the  failure  of  the  department  to 
make  regulations  rather  than  its  failure  to  comply  with  regula- 
tions made.  For  the  court  observed  that  in  that  case  the  right 
to  the  drawback  depended  on  the  statute  and  not  on  the  secre- 
tary's regulations,  which  related  merely  to  the  ascertainment  of 
the  amount.  Hence  there  the  inaction  of  the  secretary  was 
immaterial,  and  the  drawback  must  be  paid  whether  ascertained 
under  his  regulations  or  not,  where  the  amount  could  be  proved 
to  the  satisfaction  of  the  court  as  completely  as  if  every  reason- 
able regulation  had  been  duly  observed.  The  distinction 
between  the  statute  in  the  two  cases  was  said  to  be  that  one 
required  that  the  thing  itself  should  be  done  under  official 
regulations ;  the  other,  merely  that  the  proof  of  the  doing  of 
the  adf  should  be  made  in  the  manner  prescribed. 

It  must  also  be  true  that  no  one  may  be  punished  for  the 
violation  of  regulations  which  have  not  been  made.    If  authority 

'Campbell  v.  United  States,  107  U.   S.  407  (1882);  cf.  part  i  of  this  study,  loc. 
cit.  p.  231. 

*Dunlap  V.  United  States,  173  U.  S.  65  (1899). 


\ 


44  POLITICAL  SCIENCE  QUARTERLY        [Vol.  XXVIII 

be  necessary  to  establish  so  self-evident  a  proposition,  it  may  be 
inferred  from  United  States  v.  Randall,'  where  failure  to  com- 
ply with  the  command  of  a  statute,  that  masters  of  vessels 
arriving  in  port  should  repair  at  once  to  the  office  of  the  chief 
officer  of  the  customs,  was  held  excused  by  showing  that  such 
officer  had  no  office  artd  thereby  made  performance  impossible. 
It  was  declared  in  the  opinion,  however,  that  the  mere  failure 
of  the  officer  to  exact  compliance  with  the  statute  would  not 
excuse  the  failure  of  the  master  to  comply  therewith. 

Where  such  failure  to  exact  compliance  is  partial  only,  as 
where  regulations  are  promulgated  that  do  not  meet  the  full 
requirements  of  the  statute,  compliance  with  the  regulations  is 
not  compliance  with  the  statute  for  the  purpose  of  acquiring 
any  right.''  But  it  should  not  follow  from  this  that  a  penalty 
could  be  imposed  for  non-compliance  with  the  law,  where  there 
was  full  compliance  with  the  regulations.  This  would  in  effect 
place  on  the  individual  the  burden  of  himself  contriving  regula- 
tions which  would  meet  the  demands  of  the  statute.  In  a  suit 
for  a  penalty  it  should  be  held  that  he  has  the  same  right  to 
assume  the  validity  of  the  regulations  which  seems  to  be  ac- 
corded when  the  question  arises  in  a  suit  between  individuals.' 

If  the  failure  of  an  officer  to  require  compliance  with  a  statute 
cannot  excuse  complete  non-compliance,  it  would  follow  that 
non-compliance  with  administrative  regulations  could  not  be 
excused  by  any  waiver  of  their  requirements  on  the  part  of  a 
subordinate  official.  It  might  be  argued  that,  if  the  officer  who 
makes  the  regulation  cannot  himself  disregard  it  to  defeat  the 
right  of  an  individual,'*  he  cannot  authorize  the  individual  to 
disregard  it  and  thereby  escape  from  a  duty  or  from  the  impo- 
sition of  a  penalty  for  its  non-performance.  Knowing  his  duty, 
he  might  be  held  to  accept  any  favor  at  his  peril.  But  where 
the  regulations  do  not  relate  directly  to  the  duties  or  the  rights 
of  individuals,  but  pertain   merely  to  the  orderly  transaction  of 

'  I  Sprague,  546  (District  Court  of  Massachusetts,  1853). 
'  Merritt  7).  Cameron;  cf.  supra,  p.  38. 
•  La  Bourgogne;  cf.  supra,  pp.  38,  39. 

*Campl)ell  v.  United  States,  107  U.  S.  407  (1882);  cf,  part  i,  loc.  cit.  p.  231, 
and  supra,  p.  43. 


No.  I  ]  SEPARA  TION  OF  PO  WERS  45 

the  business  of  the  department,  it  seems  that  they  may  be 
waived  by  the  authority  of  the  one  who  promulgated  them, 
either  expressly  or  by  the  approval  of  a  transaction  which 
disregards  them.' 

Where  the  right  is  conditioned,  not  on  the  making  of  a  regu- 
lation or  an  administrative  finding  of  compliance  therewith,  but 
on  the  ascertainment  of  some  state  of  facts  whose  existence  is 
named  as  a  condition  under  which  the  statute  is  to  become 
operative,  the  executive  ascertainment  is  requisite  to  the  creation 
of  the  right.  This  was  held  in  Bong  v.  Campbell  Art  Com- 
pany,^ where  the  action  of  the  president  was  held  a  condition 
precedent  to  the  right  of  an  alien  to  the  benefits  of  a  copyright 
act,  whose  provisions  were  to  be  applicable  only  to  those  aliens 
whose  governments  were  declared  by  the  proclamation  of  the 
president  to  have  granted  corresponding  privileges  to  American 
citizens.  From  the  doctrine  of  the  courts  with  respect  to 
judicial  control  over  acts  in  their  nature  diplomatic  or  political,^ 
it  clearly  follows  that  such  proclamation  rests  entirely  within 
the  discretion  of  the  executive. 

But  where  the  individual  is  aggrieved  by  the  failure  of  the 
administration  to  adjudicate  the  facts  relating  to  his  particular 
case,  he  may,  as  in  the  Campbell  case,"*  establish  his  right  before 
the  court.  Thus,  where  the  secretary  of  the  interior  failed  to 
ascertain  what  was  swamp  land  and  to  furnish  the  state  with 
notice,  under  a  statute  of  Congress  construed  to  confirm  a 
present  vested  right  in  such  lands,  it  was  held  that  the  land 
nevertheless  belonged  to  the  state  when  the  facts  existed  under 
which  it  was  to  be  entitled,  and  that  if  the  secretary  would  not 
determine  the  facts  they  could  be  determined  by  the  court.^ 

There  are,  however,  numerous  instances  where  the  court 
construes  the  statute  to  mean  that  the  determination  or  adjudi- 

'  Indian  Regulations,  3  Comptroller's  Decisions,  218  (1896).  Cited  in  Wyman, 
Administrative  Law,  section  4. 

«2I4  U.  S.  236  (1909). 

*  Jones  V.  United  States,  137  U.  S.  202  (1890).  Luther  v.  Borden,  7  Howard  i 
(1848). 

*Cf.  part  i,  loc.  cit.  p.  231,  and  supra,  p.  43. 

5  Railroad  Company  v.  Smith,  9  Wallace,  95  ( 1869). 


^5  POLITICAL  SCIENCE  QUARTERLY        [Vol.  XXVIII 

cation  of  the  department  is  the  exclusive  method  of  establishing 
the  individual  right.'  It  was  held  in  United  States  v.  McLean "" 
that  the  right  of  a  postmaster  to  an  increase  of  salary  was 
conditioned  on  a  re-adjustment  by  the  postmaster-general  and 
that  no  suit  could  be  maintained  in  the  absence  of  such  re-ad- 
justment. By  a  strictly  logical  inference  it  was  decided  in 
United  States  v.  Verdier  3  that  a  postmaster  must  pay  interest 
on  a  judgment  against  him  in  favor  of  the  government,  although 
at  the  time  it  was  rendered  the  government  was  equitably  his 
debtor,  as  became  established  by  a  subsequent  re-adjustment 
of  the  postmaster-general.  Interest  on  the  amount  found  to  be 
due  him  was  not  allowed  to  begin  from  the  time  of  the  trans- 
action on  which  it  was  based,  because  the  debt  was  held  to 
have  come  into  existence  at  the  time  of  the  re-adjustment. 

But  in  the  McLean  case  the  court  suggested  that,  while  it 
could  not  perform  executive  acts  or  treat  them  as  performed 
when  they  have  been  neglected,  it  might  by  niandanius  compel 
the  executive  to  do  his  duty.  And  where  the  duty  to  promul- 
gate regulations  is  absolute,  their  promulgation  may  be  con- 
strained by  mandamus,  although  the  court  could  not  dictate 
their  provisions.  Under  some  statutes,  however,  the  adminis- 
tration seems  to  be  treated  as  vested  with  discretion  to  decline 
to  promulgate  regulations  when  in  its  judgment  it  is  inadvisable* 

4.  Finality  of  administrative  orders  and  adjudications 

It  is  clear  that  the  power  of  the  administration  to  issue  orders 
or  regulations  does  not  necessarily  impl}'  the  validity  of  the 
action  taken.  When  the  validity  of  administrative  action  is  ex- 
amined in  the  course  of  judicial  proceedings,  the  question  of 
the  conclusiveness  or  finality  of  the  action  taken  may  perhaps 
be  said  to  be  before  the  courts,  whether  it  be  an  administrative 
regulation  or  an  administrative  determination  or  adjudication 
that  is  under  consideration,  l^ut  onl}'  in  the  latter  class  of 
cases  may  the  court  itself  perform  the  task  entrusted  to  the  ad- 
ministration by  substituting  an  adjudication  or  determination  of 

•  Cf.  iupra,  pp.  43,  45.  '5  Otto,  750  (1S77). 

*  164  U.  S.  213  (1896).  *■  Dunlap  v.  United  States,  173  U.  S.  6$,  at  p.  75. 


No.  I]  SEPARATION  OF  POWERS  47 

its  own  for  that  of  the  administration.  The  use  of  the  term 
"judicial  review"  is  sometimes  misleading.  It  seems  to  be 
loosely  applied,  not  only  to  the  inquiry  whether  power  to  act  is 
lawfully  vested  or  exercised,  but  also  to  the  process  of  nullify- 
ing the  administrative  action  or  of  substituting  a  judicial  deter- 
mination in  its  stead. 

Judicial  review  of  administrative  action  is  always  possible,  if 
we  mean  that  the  courts  may  always  inquire  as  to  its  validity. 
But  the  courts  have  themselves  established  the  rule  of  law  that 
in  many  instances,  where  power  to  act  is  lawfully  vested,  they 
will  assume,  without  examination  of  the  evidence,  the  correct- 
ness of  the  administrative  determination.  This  doctrine  obtains 
with  respect  to  administrative  ascertainment  of  facts  in  determi- 
nations relating  to  the  assessment  of  property  for  taxation,'  the 
admission  of  aliens''  or  imports,^  reception  or  classification  of 
mail  matter  4  and  disposition  of  the  public  lands.s  And  there 
is  a  growing  tendency  to  hold  officers  not  answerable  in  damages 
for  what  the  court  adjudges  erroneous  findings  of  facts  in  pro- 
ceedings for  protecting  the  public  health,  which  result  in  partial 
deprivation  of  liberty  or  property,^  or  possibly,  in  total  destruc- 
tion of  property  where  the  owner  failed  to  take  advantage  of 
some  opportunity  to  secure  judicial  review  before  the  adminis- 
trative determination  was  finally  executed. ^ 

These  decisions  are  based  primarily  upon  a  recognition  of  the 
dictates  of  governmental  necessity,  but  partially  also  upon  a 

1  Hilton  V.  Merritt,  no  U.  S.  97  (1884). 

"^  United  States  v.  Ju  Toy,  198  U.  S.  253  (1905). 

*  Buttfield  V.  Stranahan,  192  U.  S.  470  (1904), 

*  Public  Clearing  House  v.  Coyne,  194  U.  S.  497  (1904).  Bates  and  Guild 
Company  v.  Payne,  194  U.  S.  106  (1904).  Here,  in  connection  with  the  classi- 
fication of  mail  matter,  it  was  said:  "  Where  there  is  a  mixed  question  of  law  and 
fact,  and  the  court  cannot  so  separate  it  as  to  show  clearly  where  the  mistake  of  law 
is,  the  decision  of  the  tribunal  to  which  the  law  has  confided  the  matter  is  conclusive." 

*  Smelting  Company  v.  Kemp,  104  U.  S.  636  (1881).  Cf.  American  Political 
Science  Review,  vol  i,  pp.  583-607. 

®  Beeks  v.  Dickinson  County  et  al.,  131  Iowa  244  (1906).  Valentine  i'.  Engle- 
wood,  76  N.  J.  Law  509  (1908). 

■"Van  Wormer  v.  The  Mayor,  15  Wendell  (N.  Y.),  262  (1836).  Ra>Tnond  v. 
Fish,  51  Conn.  80  (1883).     Cf.  Harvard  Law  Review,  vol.  24,  pp.  441-459. 


48  POLITICAL  SCIENCE  QUARTERLY 

realization  that  when  the  courts  reverse  an  administrative 
adjudication  they  assume  a  burden  which  the  statute  places  on 
other  shoulders.  For  if  the  adjudication  of  the  administration 
is  set  aside,  a  new  decision  must  be  reached  by  the  courts.  In 
annulling  a  regulation,  on  the  other  hand,  the  task  of  the  court 
is  completed. 

There  is  no  doctrine  that  an  administrative  regulation  is 
immune  from  the  power  of  the  courts  to  review.  It  is  true  the 
courts  themselves,  in  declining  to  revise  administrative  adjudi- 
cations, frequently  assert  that  the  administrative  action  is  not 
subject  to  judicial  examination  and  revision,  but  this  limitation 
upon  their  reviewing  power  is  self-imposed,  and  it  may  be  dis- 
carded whenever  they  deem  it  prejudicial  to  the  interests  which 
the  Constitution  was  designed  to  protect.  In  the  Monongahela 
Bridge  case',  Mr.  Justice  Harlan  notes  that  "  learned  counsel 
for  the  defendant  suggests  some  extreme  cases,  showing  how 
reckless  and  arbitrary  might  be  the  action  of  executive  officers," 
and  makes  reply  as  follows : 

It  will  be  time  enough  to  deal  with  such  cases  as  and  when  they  arise. 
Suffice  it  to  say,  that  the  courts  have  rarely,  if  ever,  felt  themselves  so 
constrained  by  technical  rules  that  they  could  not  find  some  remedy, 
consistent  with  the  law,  for  acts,  whether  done  by  government  or  by 
individual  persons,  that  violated  natural  justice  or  were  hostile  to  the 
fundamental  principles  devised  for  the  protection  of  the  essential  rights 
of  property. 

Thomas  Reed  Powell. 

Columbia  University. 

'  Monongahela  Bridge  Company  v.  United  States,  216  U.  S.  177  (1910).  In  this 
case  Mr.  Justice  Harlan  declared:  "  It  was  not  for  the  jury  to  weigh  the  evidence 
and  determine,  according  to  their  judgment,  as  to  what  the  necessities  of  navigation 
required,  or  whether  the  bridge  was  an  unreasonable  obstruction.  The  jury  might 
have  differed  from  the  secretary.  That  was  immaterial;  for  Congress  intended  by  its 
legislation  to  give  the  same  force  and  effect  to  the  decision  of  the  secretary  of  war 
that  would  have  been  accorded  to  direct  action  by  it  upon  the  subject."  The  func- 
tion of  the  court  was  held  to  be  limited  to  ascertaining  whether  the  executive  officers 
conform  their  action  to  the  mode  prescribed  by  Congress. 

Though  the  courts  are  often  deaf  to  the  plea  that  the  administrative  decision  is 
erronef)us,  they  will  always  entertain  a  complaint  as  to  the  ]irocedure  by  which  that 
decision  was  reached.  Chin  How  v.  United  States,  208  U.  S.  8  (1908).  Cf.  22 
Harvard  Law  Review,  360. 


ADMINISTRATIVE    EXERCISE    OF    THE 
POLICE    POWER. 

IN  legislation  passed  in  the  exercise  of  the  so-called  police  power, 
measures  designed  to  protect  the  health  and  safety  of  the  people, 
it  is  conceivable  that  the  legislature  might  ascertain  in  advance  the 
quahfications  necessary  for  those  engaged  in  any  calling  or  the  con- 
ditions essential  to  guard  against  danger  and  disease,  and  set  forth 
in  the  statute  specific  requirements  of  regulation  or  prohibition. 
But  the  progress  of  scientific  knowledge  is  so  rapid  that  the  require- 
ments of  any  statute  might  soon  prove  less  adequate  than  other 
measures  suggested  by  a  more  expert  body.  Moreover,  any  gen- 
eral rule  declared  by  the  legislature  would  be  too  inflexible  to 
conform  to  the  varying  necessities  of  different  areas  of  popula- 
tion, or  to  meet  exigencies  unforeseen  at  the  time  the  statute  is 
passed. 

The  most  salutary  exercise  of  the  police  power  is  that  which  seeks 
to  forestall  the  advent  of  danger,  not  merely  to  avert  its  conse- 
quences. This  is  best  attained  by  requiring  the  presence  of  certain 
personal  quahfications  or  physical  conditions  as  a  prerequisite  to 
the  lawfulness  of  any  action  sought  to  be  taken.  The  inquiry  as 
to  compliance  with  requirements  is  a  task  obviously  unsuited  to 
the  legislature.  And  the  function  of  the  judiciary  is  properly  lim- 
ited to  determining  in  cases  and  controversies  whether  any  rule  has 
been  violated.  And  when  health  or  safety  are  threatened  b}'  dan- 
gerous conditions  or  practices,  adequate  protection  demands  that 
they  cease  forthwith.  The  community  cannot  await  the  slow 
course  of  judicial  proceedings. 

The  legislature  has  therefore  often  seen  fit  to  delegate  to  admin- 
istrative authorities  the  power  to  set  forth  the  further  requirements 
necessary  to  effectuate  the  general  purpose  declared  by  the  statute, 
and  to  ascertain  in  individual  instances  whether  the  requirements 
have  been  met,  and,  if  necessary,  to  take  summary  and  immediate 
action  to  avert  or  minimize  the  threatened  or  actual  danger.    The 


ADMINISTRATIVE  EXERCISE  OF  THE  POLICE  POWER.     269 

power  to  act  in  all  these  instances  has  been  repeatedly  sustained, 
in  spite  of  the  objection  that  it  involves  the  exercise  of  legislative  or 
judicial  functions.^ 

I. 

Precautionary  Regulation. 

It  is  obvious  that  anything  which  might  be  prohibited  entirely 
may  be  subjected  to  governmental  supervision  and  restriction. 
And  many  acts  or  conditions  not  necessarily  pernicious  in  themselves 
may  be  regulated  as  a  precaution  against  the  dangers  involved  in 
inefficiency,  unwholesomeness  and  excess.  The  government  and 
its  agents  are  accorded  a  wider  latitude  in  exercising  a  qualified 
restraint,  than  in  enforcing  complete  prohibition  or  direct  and 
positive  interference  with  liberty  or  property. 

This  restraint  commonly  takes  the  forni  of  limiting  the  exercise 
of  some  calling  or  business  to  those  persons  or  premises  specially 
licensed.  The  exercise  of  this  power  involves  the  selection  of  the 
acts  or  objects  to  be  regulated,  the  fixing  of  a  standard,  and  the  de- 
cision whether  in  individual  instances  the  requirements  of  the 
standard  have  been  met.  The  latter  task  is  necessarily  an  admin- 
istrative one;  and  the  two  former,  while  they  might  conceivably 
be  performed  by  the  legislature,  are  quite  generally  delegated  to 
administrative  authorities,  owing  to  the  peculiarity  of  urban  con- 
ditions and  the  superior  technical  knowledge  of  experts. 

A  license  as  an  official  affirmation  of  personal  fitness  or  approved 
physical  conditions  must  be  distinguished  from  a  license  which  is 
merely  the  acknowledgment  of  the  payment  of  a  tax.  CalHngs, 
occupations  and  businesses  are  proper  subjects  of  taxation;  and 
the  method  of  collection  may  take  the  form  of  the  denial  of  the  right 
to  proceed  until  payment  of  the  tax  is  evidenced  by  a  so-called 
license.  In  such  cases  the  only  reason  for  denying  the  license  is 
the  non-payment  of  the  tax.  But  where  the  license  is  required  as 
a  police  regulation,  it  may  be  withheld  because  the  personal  quali- 
fications or  physical  conditions  do  not  meet  the  requirements  of 
the  standards  imposed.  While  it  is  proper  to  exact  a  fee  to  cover 
the  expense  of  supervision,  the  courts  will  hold  invalid  any  exaction 

1  Blue  V.  Beach,  155  Ind.  121  (1900);  People  v.  Hasbrouck,  11  Utah  291  (1895); 
State  V.  Hathaway,  115  Mo.  36  (1892). 


270  HARVARD  LAW  REVIEW. 

of  money  manifestly  for  the  p\irpose  of  securing  revenue,  unless 
there  is  present  both  the  intent  as  well  as  the  power  to  tax.  In  a 
case  where  a  license  was  required  solely  as  a  police  measure,  and  a 
dispute  arose  as  to  the  validity  of  the  exaction  of  a  fee  and  the 
proper  person  to  be  charged,  a  board  which  had  expressed  its  will- 
ingness to  examine  relator  as  to  his  qualifications  for  locomotive 
engineer,  but  had  stated  that  it  would  not  issue  a  license  without 
payment  of  the  fee,  was  ordered  by  mandamus  to  admit  him  to 
examination,  and  if  found  qualified  to  issue  the  license.- 

The  power  to  regulate  must  be  used  for  the  purpose  of  regulation. 
An  ordinance  requiring  department  stores  to  be  licensed,  which 
imposed  a  fee  but  provided  no  regulation  or  supervision,  was  held 
invalid  as  a  police  measure.^  The  court  seemed  to  doubt  whether 
department  stores  are  proper  subjects  for  regulation.  The  selec- 
tion of  such  subjects  is  a  matter  over  which  they  retain  control.  It 
has  been  held  that  the  requirement  that  horse-shoers  must  have 
three  years'  experience  and  pass  an  examination  bears  no  relation  to 
public  health,  comfort,  safety  or  welfare.'*  And  a  statute  vesting 
in  an  administrative  board  the  power  to  determine  who  should  be 
permitted  to  sell  patent  and  proprietary  medicines  was  held  uncon- 
stitutional on  the  ground  that  the  public  health  did  not  require 
that  the  sale  of  such  articles  be  confined  to  persons  with  scientific 
attainments.^ 

The  problem  of  judicial  censorship  over  the  subjects  selected  for 
regulation  and  the  standards  which  may  be  required  is  one  per- 
taining to  the  limits  of  the  police  power  generally;  though  the 
courts  may  concede  a  wider  latitude  to  the  legislature  as  a  co- 
ordinate department  of  government  than  would  be  accorded  to  an 
inferior  administrative  authority.  In  general,  the  licensing  power 
may  be  exercised  with  respect  to  any  business  affording  the  possi- 
bility of  practices  or  conditions  inimical  to  health  and  safety,  or  to 
any  calling  requiring  the  exercise  of  expert  skill  or  knowledge  to 
avoid  improper  action  necessarily  prejudicial  to  those  interests 
which  it  is  the  duty  of  the  state  to  protect. 

Governmental  supervision  may  be  aimed  at  confining  the  exer- 

*  Baldwin  v.  Kouns,  8i  Ala.  272  (1886). 

'  Slate  ex  rel.  Wyatt  v.  Ashbrook  ct  al.,  154  Mo.  375  (1S99). 

*  Tk'ssette  v.  The  People,  103  111.  334  (iqoi). 
"  Noel  V.  The  People,  187  111.  587  (1900). 


ADMINISTRATIVE  EXERCISE  OF  THE  POLICE  POWER.     271 

cise  of  a  calling  to  individuals  personally  qualified  or  to  physical 
conditions  deemed  safe  and  sanitary.  Among  the  acts  held  prop- 
erly subject  to  regulation  in  order  to  secure  the  latter  end,  are  the 
storing  of  gunpowder,^  or  inflammable  and  explosive  oils/  the 
blasting  of  rock,^  the  erection  of  proposed  buildings,''  or  bill-boards,^° 
the  operation  of  slaughter-houses,^^  hotels,^^  livery  stables,^^  laun- 
dries,^^ and  nurseries  for  trees  and  plants,^^  the  peddling  of  milk,^^ 
and  the  sale  of  milk,^^  meat^^  and  provisions  generally .^^ 

Among  the  callings  where  personal  fitness  may  be  required  we 
find  those  of  physicians,^"  dentists,^^  pharmacists, -^  engineers,^ 
mine  inspectors,^'*  plumbers,^^  barbers  ^^  and  guides.-^ 

The  power  may  be  exercised  not  only  to  protect  health  and 
safety,  but  also  to  guard  against  fraud  and  immorahty.    For  this 


«  Williams  v.  Augusta,  4  Ga.  509  (1848). 

7  Richmond  v.  Dudley,  26  N.  E.  184  (1891);  Scranton  v.  Jermyn  Oil  Co.,  5  Lane. 
L.  Rev.  277  (Pa.  1888). 

8  Commonwealth  v.  Parks,  155  Mass.  531  (1892), 

9  Hasty  V.  City  of  Huntington,  105  Ind.  540  {1886);  Com'rs  of  Easton  v.  Covey, 
74  Md.  262  (1891);  State  i;.  Sharkey,  49  Minn.  503  (1892);  State  v.  Johnson,  114.  N.  C. 
846  (1894). 

"  City  of  Rochester  v.  West,  164  N.  Y.  510  (1900). 

11  Crescent  City  Live  Stock  Co.  v.  Butchers  Union  Live  Stock  Co.,  in  CJ.  S.  746 
(1883);   St.  Louis  V.  Howard,  119  Mo.  41  (1893). 

12  Russellville  t».  White,  41  Ark.  485  (1883);  Holland  v.  Pack,  Peck  (Tenn.)  151 
(1823);  State  V.  Stone,  6  Vt.  295  (1834);  Stanwood  v.  Woodward,  38  Me.  192  (1854). 

"  33  Cent.  Dig.,  columns  1492,  1493. 

"  In  re  Yick  Wo,  68  Cal.  294  (1885). 

IS  Ex  parte  Hawley,  115  N.  W.  93  (S.  Dak.  1908). 

«  People  7!.  Mulholland,  82  N.  Y.  324  (1880). 

"  People  V.  Vandecarr,  175  N.  Y.  440  (1903)- 

18  Kinsley  i*.  Chicago,  124  111.  359  (1888);  Porter  v.  City  of  Water  Valley,  70  Miss. 
560  (1893);   Ash  V.  The  People,  11  Mich.  347  (1863). 

19  Thomas  v.  Town  of  Mount  Vernon,  9  Oh.  290  (1839). 

20  Dent  V.  West  Virginia,  129  U.  S.  114  (1889);  Reetz  v.  Michigan,  188  U.  S.  505 
(1903);  People  V.  Hasbrouck,  11  Utah  291  (1895);  France  v.  The  State,  57  Oh.  St.  i 
(1897);  State  ex  ret.  Burroughs  v.  Webster,  150  Ind.  607  (1898). 

21  State  z;.  Creditor,  44  Kan.  565  (1890);  Gosnell  v.  The  State,  52  Ark.  228  (1889); 
State  V.  Vandersluis,  42  Minn.  129  (1889);   Wilkins  v.  State,  113  Ind.  514  (1887). 

22  State  V.  Heineman,  80  Wis.  253  (1891);   Noel  v.  The  People,  187  111.  587  {1900). 

23  McDonald  v.  The  State,  81  Ala.  279  (1886);  Smith  v.  Alabama,  124  U.  S.  465 
(1888);  Nashville,  etc.  R.  R.  Co.  v.  Alabama,  12S  U.  S.  96  (1888). 

2<  Wilmington  Star  Mining  Co.  v.  Fulton,  205  U.  S.  60  (1906). 

25  Singer  v.  State,  72  Md.  464  (1890);  People  v.  Warden  of  City  Prison,  144  N.  Y. 
529  (1895);   Douglas  V.  The  People.  225  111.  536  (1907)- 

26  State  V.  Zeno,  79  Minn.  80  (1900);  State  v.  Sharpless,  71  Pac.  737  (Wash.  1903). 

27  State  V.  Snowman,  94  Me.  99  (1900). 


272  HARVARD  LAW  REVIEW. 

reason  it  is  held  that  the  privilege  of  book-making  and  pool-selling 
may  be  limited  to  persons  found  to  be  of  good  character.-^  Such 
provisions  are  of  course  sustained  in  regulating  any  calling,  such 
as  the  liquor  traffic,  which  may  be  prohibited  entirely.  And  even 
with  respect  to  other  callings,  having  no  necessary  flavor  of  evil, 
the  power  to  license  is  upheld,  though  the  qualifications  required 
are  of  a  moral  rather  than  an  intellectual  nature.  Licenses  are 
demanded  of  private  detectives,^^  pawnbrokers,^''  junk-dealers  and 
dealers  in  second-hand  goods,^^  auctioneers,^-  book-canvassers,^^ 
and  hawkers  and  peddlers.^^  Sometimes  the  inquiry  preHminary  to 
the  granting  of  a  Ucense  will  relate  to  the  conditions  of  the  place 
of  business  as  well  as  to  the  qualifications  of  the  one  seeking  per- 
mission. This  would  be  true  as  to  the  sale  of  liquor,  the  conduct 
of  a  bilUard  hall  ^^  or  other  place  of  amusement/^  and  of  ware- 
houses.^^ 

Sometimes  the  precautionary  measures  of  administrative  author- 
ities extend  beyond  mere  inspection  to  positive  interference.  The 
courts  have  sustained  an  ordinance  requiring  all  second-hand 
clothing  to  be  fumigated  by  public  authorities  at  the  expense  of 
the  owner ,^^  and  a  statute  requiring  all  rags  to  be  disinfected,  whether 
actually  infected  with  disease  or  not,  where  the  danger  was  thought 
too  great  to  permit  of  discrimination.^^  The  same  reason  justifies 
compulsory  vaccination. 

The  acts  and  businesses  subjected  to  regulation  are  far  more 
numerous  than  any  list  to  be  gleaned  from  judicial  decisions;  for 

^*  State  V.  Thompson,  i6o  Me.  333  (1900). 
2'  In  re  Burnett's  Ai)plic:ition,  5  Pa.  Dist.  R.  3  (1895). 
'"  Launder  z).  Chicago,  iii  111.  291  (1884). 
^'  Grand  Rapids  v.  Brandy,  105  Mich.  670  (1895). 
'2  People  exrcl.  Schwab  v.  Grant,  126  N.  Y.  473  (1891). 
^  Borough  of  Warren  v.  Geer,  117  Pa.  St.  207  (1S87). 

^*  Stale  V.  Harrington,  68  Vt.  622  (1896);  Duluth  v.  Krupp,  46  Minn.  435  (iSqi); 
Commonwealth  v.  Gardner,  133  Pa.  St.  284  (1900);    Morrill  v.  State,  38  Wis.  428 

(1875). 

^  In  re  Sncll,  58  Vt.  207  (1885). 

™  Walkuk  V.  City  of  New  York,  3  Hun  (N.  Y.)  84  (1874). 

"  Cargill  Co.  v.  Minnesota,  iSo  U.  S.  452  (1900).  And  for  protection  against  fraud 
in  sales,  weights  and  measures  may  be  required  to  be  pro\ed  and  sealed  by  a  public 
inspector.  I'eople  ex  rcl.  Gould  v.  Rochester,  45  Hun  (N.  Y.)  102  (1887).  The  use 
of  uninsi)ectcd  standards  has  been  held  a  defense  in  an  action  for  the  ])rice  of  goods 
sold.    Bisbeeti.  McAllen,  39  Minn.  143  (1888);  Smith  v.  Arnold,  106  Mass.  269  (1871). 

'"  Kosenl)aum  v.  Ncwbcrn,  118  N.  C.  83  (1806). 

^''  Train  v.  Boslou  Disiufcrling  Co.,  144  Mass.  523  (1887). 


ADMINISTRATIVE  EXERCISE  OF  THE  POLICE  POWER.     273 

many  statutes  and  ordinances  have  been  long  enforced  without  bemg 
questioned  in  the  courts.^" 

It  is  to  be  noted  that  even  where  supervision  and  the  requirement 
of  a  hcense  are  not  deemed  improper,  ordinances  regulating  useful 
callings  have  been  declared  invalid  on  account  of  discriminations  in 
favor  of  certain  classes  or  individuals  which  bear  no  relation  to  the 
fitness  of  those  exempted  from  the  examination  or  inspection  re- 
quired of  others.^^  A  regulation  which  required  a  license  for  all 
electricians  except  those  employed  by  the  city  in  its  departments 
of  poHce  and  public  buildings,  and  those  employed  by  Ughting  and 
electric  railway  companies  in  the  installation  and  maintenance  of 
meters  and  pole-line  service,  was  held  void  on  the  ground  of  dis- 
crimination, where  the  court  was  of  opinion  that  the  work  of  those 
excepted  possessed  the  same  elements  of  danger  as  that  of  those 
required  to  be  examined.^-  While  it  has  been  held  proper  to  divide 
engineers  into  four  classes  according  to  the  character  of  the  work 
in  which  they  are  engaged,  with  different  qualifications  for  each 
class,^^  a  regulation  which  required  an  examination  of  journeymen 
plumbers  but  permitted  master  plumbers  to  be  registered  without 
examination  was  declared  invalid  for  lack  of  uniformity.^ 

The  administrative  action  in  establishing  the  standard  set  forth 
as  a  condition  of  obtaining  the  license,  like  the  administrative  se- 
lection of  the  subjects  to  be  regulated,  is  open  to  judicial  review. 
The  court  has  doubted  the  legality  of  a  requirement  that  no  medical 
school  would  be  put  on  the  accepted  list  if  it  permitted  more  than 
forty-five  per  cent  of  its  matriculants  to  graduate,^^  and  has  held 
unreasonable  and  void  the  requirement  that  applicants  for  a  plumb- 
er's license  must  possess  a  knowledge  of  physics  and  hygiene.^ 
The  right  to  conduct  a  nursery  from  which  to  sell  plants  and  trees 
cannot  be  conditioned  on  establishing  that  the  applicant  is  "re- 
sponsible," in  the  sense  that  he  is  financially  able  to  pay  damages 
for  bad  stock  sold.^^    It  was  said  that  a  man  cannot  be  denied  the 

*°  See  Freund,  Police  Power,  sec.  493,  for  review  of  statutory  requirements  of  recent 
years. 
^  State  V.  Gardner,  58  Oh.  St.  599  (1888);  Harmon  v.  State,  66  Oh.  St.  249  (1902). 
*-  State  V.  Gantz,  124  La.  535  (1909). 
*^  Hyvonen  v.  Hector  Iron  Co.,  103  Minn.  331  (1908). 
**  Commonwealth  v.  Shafer,  32  Pa.  Super.  Ct.  497  (1907). 
^  Iowa  Eclectic  Medical  College  Ass'n  v.  Shrader,  87  la.  659  (1893). 
*«  United  States  ex  rcl.  Kerr  v.  Ross,  5  D.  C.  App.  241  (1895). 
«  Ex  parte  Hawley,  115  N.  W.  93  (S.  Dak.  1908). 

18 


274  HARVARD  LAW  REVIEW. 

right  to  sell  his  trees  because  he  is  poor,  as  poverty  is  no  indication 
of  dishonesty.  In  a  decision  sustaining  the  refusal  of  a  license  to 
practice  medicine  because  of  deceptive  advertising,  the  court  ob- 
served that  "unprofessional  conduct"  must  consist  in  something 
more  than  the  violation  of  some  code  of  professional  ethics,  and 
indicated  that  the  mere  fact  of  having  advertised  would  be  an  in- 
sufficient ground  for  denying  a  certificate,  even  though  such  adver- 
tising is  frowned  upon  by  the  profession.^^  In  a  recent  Wisconsin 
opinion  it  was  observed  that  there  is  a  wide  interval  between  the 
ideal  and  the  practical,  and  that 

"common  sense  as  to  reasonable  requirements  and  reasonable  means  of 
securing  such  requirements  should  prevail,  not  the  extreme  \aews  of  well- 
meaning  persons  as  to  what  is  for  the  best.  Idealists  ^s-ill  often  find 
efforts  to  force  their  standards  of  living  upon  people  generally  by  legis- 
lation barred  by  constitutional  limitations."  *^ 

It  is  to  be  remembered,  however,  that,  in  exercising  this  re\'iew, 
the  courts  are  chary  of  overruling  the  standard  fixed  by  the  admin- 
istration. In  declining  to  hold  that  commissioners  had  exceeded 
their  discretion  in  requiring  party-walls  to  be  thirteen  inches  in 
thickness,  Mr.  Justice  Robb  observed: 

"In  view  of  the  wide  latitude  of  discretion  given  the  commissioners  by 
this  act,  a  plain  case  of  usurpation  of  power  or  abuse  of  discretion  must 
be  made  before  the  court  would  be  authorized  to  interfere."  ^^ 

In  another  case  which  sustained  as  reasonable  the  administrative 
ruling  that  licenses  to  peddlers  of  milk  would  be  granted  only  to 
those  who  provide  a  special  room  for  storing  milk  and  cleansing 
utensils,  the  court  declared  that  it  would  not  review  the  refusal  of 
a  license  unless  facts  were  alleged  showing  that  the  discretion  was 
not  honestly  exercised  in  the  interest  of  a  pure  milk  supply, 
saying: 

"The  office  of  an  alternative  writ,  if  one  were  granted,  would  be  to 
try  out  in  the  courts  the  question  as  to  whether  it  was  good  juilgment  to 
require  milk  producers  to  maintain  a  separate  milk  room.  This  would 
substitute  the  opinion  of  the  court  for  that  of  the  milk  officer.    It  is  not 

"  State  V.  State  Medical  ExamininR  Board,  32  Minn.  324  (1884). 

«  Bunnctt  v.  Vallicr,  116  N.  W.  SS5  (1008). 

'"  United  States  ex  rd.  Smithson  v.  Ashfurd,  29  D.  C.  App.  350  (1907). 


ADMINISTRATIVE  EXERCISE  OF  TEE  POLICE  POWER.     275 

desirable  or  in  the  public  interest  that  the  discretion  of  the  health  ofl5- 
cer  should  be  so  reviewed,  and,  whether  the  power  to  do  so  exists  or  not, 
it  ought  not,  in  my  opinion,  to  be  exercised  in  this  case."  *^ 

So  also,  where  the  court  denied  a  mandamus  to  coerce  the  grant- 
ing of  a  license  where  the  board  had  determined  that  the  college 
from  which  relator  held  a  diploma  was  not  "reputable,"  it  was 
said  that  the  methods  by  which  the  board  should  determine  the 
reputability  of  a  dental  college  not  being  set  forth  in  the  statute, 
they  may  do  so  in  any  way  they  deem  proper,  and  that  candidates 
for  licenses  must  submit  to  their  judgments,  so  long  as  they  are 
within  the  boundaries  of  reason  and  common  sense.  "Having  once 
determined  the  character  of  a  dental  college,  within  all  reasonable 
limits,  when  and  under  what  circumstances  the  subject  shall  be 
re-opened  rests  solely  in  the  board's  discretion."  ^^ 

With  respect  to  the  regulation  of  those  callings  requiring  expert 
ability,  the  Supreme  Court  has  said  that  the  nature  and  extent  of 
the  qualifications  demanded  must  depend  primarily  upon  the  judg- 
ment of  the  state  as  to  their  necessity,  and  that  if  appropriate  to 
the  calling  and  attainable  by  reasonable  study,  no  objection  can  be 
raised  to  their  validity  because  of  their  stringency  or  difficulty.  This 
was  applied  not  only  to  the  right  to  begin  the  practice  of  medicine, 
but  to  the  privilege  of  continuing  it.^^ 

But  the  qualifications  required  by  statute,  and  so  a  fortiori  by 
an  administrative  body,  must  relate  to  the  subject  matter  demand- 
ing regulation.  One  cannot  be  deprived  of  the  right  to  practice  his 
profession  for  disqualifications  .which  have  no  bearing  on  his  fitness 
to  continue  therein.^''  Yet  the  qualifications  which  relate  to  fitness 
are  not  confined  to  those  of  a  technical  or  scientific  order,  but  em- 
brace moral  attainments  as  well.  A  physician,  whatever  his  scien- 
tific attainments,  may  have  his  license  revoked  for  employing 
these  faculties  perversely  .^^ 

Under  many  statutes,  however,  the  administration  is  not  re- 
quired to  establish  any  standard  by  which  to  test  the  right  of  an 
applicant  to  a  license.    Each  individual  case  is  committed  to  the 

^1  Foote,  J.,  in  People  ex  rel.  Shelter  v.  Owen,  116  N.  Y.  Supp.  502  (1909). 

62  State  ex  rel.  Coffee  v.  Chittenden,  88  N.  W.  587  (Wis.  1902). 

63  Dent  V.  West  Virginia,  129  U.  S.  114  (1889). 

^  Cummings  v.  Missouri,  4  Wall.  (U.  S.)  277  (1866);   Ex  parte  Garland,  4  Wall. 
(U.  S.)  333  (1866). 
^  Hawker  v.  People,  170  U.  S.  189  (1898). 


2/6  HARVARD    LAW  REVIEW. 

special  and  unregulated  discretion  of  the  board  or  official.  Here 
obviously  the  courts  cannot  review  the  standard  in  the  subcon- 
sciousness of  the  administration.  They  are  necessarily  the  final  ar- 
biters of  the  individual  right  or  privilege.  For  this  reason  statutes 
vesting  such  power  are  in  many  jurisdictions  declared  invahd. 

A  distinction  appears  between  acts  which,  though  they  might 
possibly  be  prohibited  entirely,  yet  may  be  so  performed  as  to  give 
rise  to  no  danger  or  evil,  and  those  deemed  necessarily  pernicious, 
however  or  wherever  sought  to  be  committed.  In  spite  of  their 
evil  quality,  the  law-makers  may  find  universal  and  complete  pro- 
hibition inexpedient,  and  prefer  to  deny  the  right  to  all  save  those 
specially  selected.  The  law  is  clear  that,  with  respect  to  such  acts, 
this  selection  and  consequent  granting  of  a  Hcense  may  be  com- 
mitted to  the  unrestrained  discretion  of  an  administrative  body. 
The  Supreme  Court  has  declared  ^^  that,  since  the  Hquor  trafiic 
might  be  prohibited  altogether,  there  is  no  inherent  right  to  engage  • 
therein,  and  that  therefore  the  manner  and  extent  of  regulation 
rests  entirely  in  the  discretion  of  the  governing  authority. 

A  more  difiicult  question  arises  with  respect  to  occupations  which 
if  properly  conducted  are  confessedly  innocuous,  where  the  only 
source  of  danger  lies  in  unsanitary  conditions  or  in  an  excessive 
number  of  acts  or  establishments.  In  reference  to  such  acts  it  is 
asserted  by  many  courts  that,  though  no  one  may  claim  the  right 
to  follow  the  given  calling  or  to  perform  the  given  acts  free  from  all 
restraint,  each  person  must  be  granted  permission  on  complying 
with  certain  conditions  definitely  set  forth  for  his  guidance.  It 
has  therefore  been  held  improper  to  make  the  right  to  do  any  lawful 
act  dependent  on  the  mere  whim  of  some  administrative  board  or 
official,  who  may  in  the  presence  of  identical  conditions  grant  the 
privilege  to  one  and  withhold  it  from  another.  In  Baltimore  v. 
Radccke  ^^  an  ordinance  prohibiting  the  erection  of  a  stationary 
steam  engine  without  the  consent  of  the  mayor  and  ct)uncil  was 
held  void  for  failure  to  set  forth  any  conditions  controlling  the 
exercise  of  the  discretion  to  grant  or  withhold  permission.  And  in 
Yick  Wo  V.  Hopkins,''^  the  Supreme  Court  annulled  a  similar  ordi- 
nance relating  to  the  operation  of  laundries  in  wooden  buildings, 
and  declared: 

''*'  Crowley  v.  Christcnscn,  137  U.  S.  86  (1890). 

"  49  Md.  217  (1878).  "  118  O.  S.  356  (1886). 


ADMINISTRATIVE  EXERCISE  OF  THE  POLICE  POWER.     277 

"The  very  idea,  that  one  man  may  be  compelled  to  hold  his  life,  or 
the  means  of  living,  or  any  material  right  essential  to  the  enjoyment  of 
life,  at  the  mere  will  of  another,  seems  to  be  intolerable  in  any  country 
where  freedom  prevails,  as  being  of  the  essence  of  slavery." 

The  language  of  this  opinion  has  been  cited  in  many  decisions 
which  have  declared  statutes  and  ordinances  unconstitutional  for 
making  the  right  to  exercise  some  act,  trade  or  caUing,  not  harmful 
in  itself,  dependent  on  the  unrestrained  discretion  of  some  admin- 
istrative authority. 

But  the  Supreme  Court  has  receded  from  the  extrem.e  position 
announced  in  Yick  Wo  v.  Hopkins,  and  stated  that  that  decision 
should  be  rested  on  the  fact  that  the  administration  of  the  law 
there  indicated  actual  discrimination  against  a  certain  class  of  in- 
dividuals.^^ And  in  Wilson  v.  Eureka  City,^°  they  sustained  an  or- 
dinance which  prohibited  the  moving  of  any  building  on  the  streets 
without  the  written  permission  of  the  mayor,  although  the  ordi- 
nance did  not  prescribe  the  circumstances  by  which  his  discretion 
in  the  matter  was  to  be  controlled.  The  court  refers  to  Re  Flaherty®^ 
and  its  summary  of  the  decisions  where  the  exercise  of  this  unre- 
strained discretion  has  been  held  proper.  It  is  true  that  most  of 
them  are  instances  of  the  use  of  the  streets  or  the  public  parks, 
where  the  control  of  the  city  is  more  extensive  than  over  acts  done 
on  a  man's  own  premises.  But  others  involved  statutes  which  for- 
bade the  keeping  of  swine  without  a  permit  from  the  board  of 
health ,^^  or  the  erection  and  repair  of  buildings  without  a  permit 
from  the  designated  officials,''^  or  made  the  right  to  ring  bells  or 
blow  whistles  dependent  upon  the  consent  of  the  board  of  aldermen.^^ 

Some  of  these  acts  might  doubtless  have  been  forbidden  to  every 
one  within  some  defined  area;  but  even  as  to  such  we  have  a  square 
conflict  of  authority;  for  the  decisions  which  object  to  the  vesting 
of  unrestrained  discretion  are  based  on  the  ground,  not  that  every 
one  has  a  right  to  do  the  thing  for  which  consent  is  required,  but 
that  where  not  inherently  evil  whatever  the  conditions  surrounding 


5^  Crowley  v.  Christensen,  supra,  p.  276. 

60  173  U.  S.  32  (1898). 

61  105  Cal.  558. 

62  Quincy  v.  Kennard,  151  Mass.  563. 

63  Hine  v.  The  City  of  New  Haven,  40  Conn.  478;   Commissioners,  etc.  r.  Covey, 
74  Md.  262. 

64  Sawyer  v.  Davis,  136  Mass.  239. 


278  HARVARD  LAW  REVIEW.  ' 

it,  if  permitted  to  one,  it  must  be  granted  to  another  on  fulfilling 
the  same  objective  conditions. 

In  spite  of  the  dangers  of  favoritism  and  unjust  discrimination,  it 
may  be  said  that  unless  such  statutes  are  to  be  sustained,  at  least 
with  respect  to  acts  which  if  done  too  frequently  or  in  too  many 
places  would  produce  manifest  harm,  it  will  be  necessary  to  pro- 
hibit certain  acts  or  occupations  entirely,  in  order  to  prevent  the 
danger  which  would  arise  from  transferring  the  unrestrained  dis- 
cretion of  the  administrative  authority  to  the  individuals  engaged  in 
the  enterprise. 

After  selecting  the  subjects  for  regulation  and  fixing  a  standard, 
there  remains  the  further  task  of  ascertaining  in  individual  instances 
whether  the  requirements  of  the  standard  have  been  complied 
with.  With  respect  to  the  quality  of  provisions  or  the  condition  of 
the  premises  where  any  business  is  sought  to  be  conducted,  the 
method  employed  will  usually  be  that  of  inspection.  Where  the 
possession  of  personal  qualifications  is  in  issue,  the  determination 
may  be  reached  by  examining  the  candidate  to  discover  his  attain- 
ments, or  by  ascertaining  whether  he  has  fulfilled  the  require- 
ments of  study  or  received  a  previous  certificate  prescribed  by 
statute  or  regulations.  In  Reetz  v.  Michigan  ^^  it  was  objected  that 
the  power  to  determine  whether  one  had  been  legally  registered 
under  a  prior  statute  involved  the  decision  of  a  legal  question. 
But  the  Supreme  Court  answered  that  no  provision  in  the  federal 
Constitution  forbids  a  state  from  granting  to  a  tribunal,  whether 
called  a  court  or  a  board  or  registration,  the  final  determination  of 
a  legal  question.  The  statute  giving  this  power  to  the  Board  of 
Registration  was  sustained  although  no  right  of  appeal  was  therein 
provided.  And  it  is  held  that  the  task  of  determining  upon  qualifi- 
cations as  to  honor  and  moral  fitness  may  be  devolved  upon  an 
administrative  body.^^  But  the  applicant  is  entitled  to  be  heard 
upon  the  question.^^ 

Where  the  requirement  of  a  license  and  the  standards  imposed 
are  both  valid,  the  receipt  of  permission  is  essential  to  the  IcgaHty 
of  action  taken.  It  is  no  defense  that  llu-  individual  does  in  fact 
possess  the  qualifications  which  would  entitle  him  to  a  license.    The 

«  i88U.  S.  S05  (100,0. 

««  Stale  V.  SUilc  Medical  Board,  32  Minn.  324  (1S84). 

«^  Ibid.f'scmble. 


ADMINISTRATIVE  EXERCISE  OF  TEE  POLICE  POWER.     279 

purpose  of  precautionary  regulation  would  be  defeated  by  allowing 
every  one  to  be  his  own  inspector,  subject  to  the  subsequent  ap- 
proval of  a  jury.  Unlicensed  acts  are  illegal  even  though  a  hcense  if 
requested  could  not  rightfully  be  denied.^^  One  who  makes  no  re- 
quest for  permission  can  defend  his  conduct  only  on  the  ground 
that  permission  could  not  be  required.  The  determination  of  quali- 
fications is  committed  primarily  to  administrative,  not  judicial,  au- 
thorities. The  courts  will  not  conduct  an  original  investigation,  nor 
can  there  be  judicial  review  of  an  administrative  determination 
which  has  not  been  made. 

If,  however,  the  board  refuse  to  entertain  an  application  for  a 
license,  their  consideration  of  quaUfications  may  be  coerced  by 
mandamus.  The  writ  has  issued  to  compel  the  giving  of  an  exam- 
ination to  determine  whether  relator  is  entitled  to  practice  law,^^ 
and  to  compel  a  Civil  Service  Board  to  admit  relator  to  examina- 
tion for  an  appointment  to  a  position  in  the  classified  service. "° 

Moreover,  the  hcense  itself  may  be  secured  by  mandamus  when 
the  officers  withholding  it  are  vested  with  no  discretionary  power, 
but  entrusted  merely  with  a  ministerial  duty.^^    This  rehef  was  ob- 

^*  This  is  true  even  where  a  license  has  been  applied  for  and  wrongfully  refused. 
City  of  Montpelier  v.  Mills,  85  N.  E.  6  (Ind.  1908).  Vide  infra,  p.  289.  Third  parties 
may  take  ad\^antage  of  the  illegality  of  unlicensed  acts  in  a  suit  to  recover  for  work 
done  and  materials  furnished,  Bronold  et  al.  v.  Engler,  105  N.  Y.  Supp.  508  (1907). 
Some  decisions  limit  the  doctrine  to  cases  where  the  statute  prohibits  engaging  in  the 
business  without  a  license  or  expressly  vitiates  all  contracts  made  by  one  without  a 
license,  and  refuse  to  apply  it  where  such  provisions  are  absent,  Streivel  v.  Lally, 
loi  S.  W.  1 134  (Ark.  1909);  or  where  the  statute  merely  imposes  a  penalty.  Sun- 
flower Lumber  Co.  v.  Turner  Supply  Co.,  48  So.  510  (Ala.  1909).  If  there  was  no  at- 
tempt to  comply  with  the  law,  third  parties  may  take  advantage  of  illegality  where 
the  requirement  of  a  license  is  a  revenue  rather  than  a  police  measure,  Gilley  v.  Harrel, 
loi  S.  W.  424  (Tenn.  1907);  but  it  is  held  that  the  non-payment  of  a  revenue  tax, 
where  it  was  tendered  but  not  accepted,  does  not  invalidate  the  contracts  of  an  un- 
licensed person,  where  the  occupation  was  otherwise  lawful  and  required  no  regulation 
or  supervision.    Fossett  v.  Rock  Island  Lumber  &  Mfg.  Co.  et  al.,  76  Kan.  428  (1907). 

69  Florida  ex  rel.  Lamson  v.  Baker,  25  Fla.  598  (1889). 

70  People  ex  rel.  Ryan  v.  Wheeler,  2  N.  Y.  St.  Rep.  656  (1886). 

Cf.  United  States  ex  rel.  Kerr  z;.  Ross,  5  D.  C.  App.  241  (1895),  where  commissioners 
who  had  unlawfully  delegated  to  a  board  of  examiners  the  power  to  entertain  appUca- 
tions  for  licenses  were  compelled  by  mandamus  to  receive  and  entertain  the  applica- 
tion themselves,  and  Territory!).  McPherson,  6  Dak.  27  (1888),  where  the  writ  issued 
to  compel  commissioners  to  fix  licenses  to  sell  Uquor  under  the  right  statute  after  they 
had  fixed  them  under  the  wrong  one. 

'1  People  ex  rel.  Danziger  v.  Metz,  107  N.  Y.  Supp.  970  (1908);  State  Board  of 
Pharmacy  of  Kentucky  v.  White,  84  Ky.  626  (1886);  People  v.  Busse,  231  III.  251  (1907) 


28o  HARVARD  LAW  REVIEW. 

tained  where  the  refusal  to  issue  a  permit  for  a  building  was  based 
on  authority  claimed  under  an  ordinance  declared  invalid,"-  and 
where  an  excise  board  denied  a  license  on  grounds  not  committed  to 
their  jurisdiction,"^  or  for  the  professed  reason  that  no  more  saloons 
were  needed  and  that  a  number  of  neighboring  property  owners 
less  than  a  majority  objected,  which  was  no  legal  ground  for  the 
refusal.  ^^ 

Where,  however,  the  denial  of  a  license  is  based  on  a  finding  of 
fact  lawfully  committed  to  the  discretion  of  the  licensing  authority, 
mandamus  is  not  available  to  substitute  the  discretion  of  the  court 
for  that  of  the  administrative  board.  In  a  case  where  the  writ  was 
sought  after  the  board  had  passed  adversely  on  the  standing  of  the 
medical  school  from  which  relator  received  his  diploma,  the  opinion 
stated  that 

"while  courts  on  suitable  occasions  will  apply  the  spur  of  mandamus  to 
put  the  discretion  of  inferior  courts  and  officers  in  motion,  yet  after  that 
discretion  has  been  exercised,  as  in  the  case  at  bar,  no  matter  in  what 
way,  the  mandatory  authority  to  compel  the  doing  of  the  particular  act 
prayed  for  is  at  an  end." 

It  was  further  observed  that,  should  the  court  arrogate  to  itself 
such  revisory  powers, 

"  it  would,  while  palpably  usurping  functions  conferred  exclusively  by  the 
law  upon  others,  in  the  endeavor  to  ascertain  whether  a  given  college 
is  a  '  medical  institution  in  good  standing,'  .  .  .  find  itself  seriously 
embarrassed  by  the  character  of  the  investigation  it  would  be  compelled 
to  make;  might  find  itself  wandering  amid  the  mazes  of  therapeutics  or 
else  boggling  at  the  mysteries  of  the  pharmacopoeia."  ''^ 

The  doctrine  is  well  established  that  the  courts  will  not  in  inan- 
damus    proceedings    endeavor    to    ascertain    for    themselves    the 

(where  the  board  had  no  discretion  to  refuse  a  license  to  sell  cigarettes  manufactured 
only  from  pure  tobacco). 

'-  Hostock  V.  Sams,  95  Md.  400  (1902).  Ordinance  attempted  lo  aulliorize  refusal 
of  permit  to  ctccI  building  which  would  not  conform  in  appearance  to  other  buildings 
in  the  neighborhood,  and  would  tend  to  depreciate  the  value  of  surroinuling 
property. 

"  Grifl'in  v.  United  States  ex  rel.  Le  Cuyer,  30  D.  C.  App.  291  (1908);  State  ex  rel. 
Johnston  v.  Lutz  ct  ill.,  136  Mo.  633  (i8yO). 

^■'  Stale  ex  rel.  Galle  v.  New  Orleans,  113  La.  371  (1904). 

"  State  ex  rel.  Granville  i;.  Gregory,  83  Mo.  123  (1884). 


ADMINISTRATIVE  EXERCISE  OF  THE  POLICE  POWER.     281 

standing  or  reputation  of  the  institution  found  deficient  by  the 
administration.'^ 

The  same  rule  prevails  where  the  hcensing  authority  has  in  the 
exercise  of  discretion  duly  vested  passed  adversely  upon  the  personal 
qualifications  or  characteristics  of  an  applicant.  Mandamus  was 
denied  to  overrule  the  decision  of  the  State  Board  of  Examiners  of 
Architects  in  refusing  a  Kcense  to  relator  on  the  ground  that  he  was 
a  builder  and  not  an  architect,  although  the  trial  court  had  found 
that  he  was  an  architect  and  had  ordered  the  writ  to  issue."  And 
where  the  writ  was  sought  to  secure  a  certificate  to  practice  den- 
tistry denied  by  the  board  after  a  personal  examination  of  the  re- 
lator, the  petition  was  dismissed  and  the  refusal  of  the  court  below 
to  inspect  the  examination  papers  was  sustained.''^ 

Mandafnus  has  been  denied  to  overrule  the  exercise  of  discretion 
in  denying  a  license  to  a  person  deemed  unfit  to  be  an  auctioneer, 
the  court  declaring  that  the  discretion  of  the  mayor  is  not  subject 
to  judicial  supervision  or  control."^  It  has  been  denied  also  to  over- 
rule the  determination  that  relator  was  not  qualified  to  run  an 
intelligence  office,^"  did  not  possess  the  moral  attainments  requisite 
to  entitle  him  to  a  Hcense  for  a  dram-shop,^^  or  was  not  a  fit  and  suit- 
able person  to  conduct  a  pawnbroker's  establishment.^-  So  also 
it  was  refused  where  the  County  Commissioners  denied  a  license 
to  carry  fire-arms  on  the  ground  that  the  apphcant  and  his  wit- 
nesses were  unknown  to  them,  so  that  they  were  not  satisfied  as  to 
his  moral  character. ^^  The  court  observed  further  that  if  the  stat- 
ute requiring  a  license  were  unconstitutional,  ma^idamus  certainly 
could  not  be  employed  to  compel  its  issue. 

Where  the  privilege  sought  is  of  great  importance,  the  courts  are 
inclined  to  be  more  guarded  in  their  language  when  decHning  to 
review  administrative  judgments  on  moral  quahfications,  although 
a  careful  search  has  failed  to  discover  any  instance  where  vianda- 

™  Williams  v.  Dental  Examiners,  93  Tenn.  619  (1894);  State  ^.r  rcl.  IMedical  College 
V.  Coleman,  64  Oh.  St.  377  (1901);  State  ex  rel.  Kirchgessner  v.  Board  of  Health,  53 
N.  J.  L.  594  (1891). 

"  Illinois  State  Board  of  Architects  v.  The  People,  93  111.  App.  436  (1900). 

^8  Ewbank  v.  Turner,  134  X.  C.  77  (1903). 

"  People  ex  rel.  Schwab  v.  Grant,  126  N.  Y.  473  (1891). 

^  People  ex  rel.  Hall  v.  San  Francisco,  20  Cal.  592  (1862). 

81  State  ex  rel.  Kyger  v.  Holt  County  Court,  39  Mo.  521  (1867). 

82  Harrison  v.  People,  121  111.  App.  189  (1905)- 

^  Florida  ex  rel.  Russe  v.  Parker,  57  Fla.  170  (1909). 


282  HARVARD  LAW  REVIEW. 

mus  was  issued  because  the  court  differed  from  the  administration 
on  the  question  of  an  applicant's  character.  But  in  State  ex  rel. 
Hathaway  v.  State  Board  of  Health,^'  which  denied  mandamus  to 
compel  a  certificate  to  practice  medicine,  where  the  board's  refusal 
was  based  on  the  ground  that  relator's  previous  advertising  had 
been  unprofessional  and  dishonorable,  the  court  qualified  its  asser- 
tion that  the  Board  of  Health  is  charged  with  the  performance  of 
important  discretionary  duties,  whose  performance  will  not  be  ham- 
pered by  mandamus,  by  the  exception:  "until  a  case  of  manifest 
injustice  is  shown."  In  a  similar  case  where  the  unprofessional 
conduct  consisted  in  the  claim  to  be  a  medicine  man  of  a  tribe  of 
Indians  and  the  proprietor  of  a  marvelous  nostrum  which  when 
taken  internally  would  cure  cholera  morbus  and  when  applied  ex- 
ternally drive  away  rheumatism,  the  court,  though  unqualified  in 
its  assertion  that  the  certificate  could  not  be  compelled  by  manda- 
mus, went  further  and  observed  that  unprofessional  conduct  must 
consist  in  something  more  than  the  violation  of  some  professional 
code  of  ethics.^^ 

Many  of  the  administrative  decisions  which  the  courts  decline  to 
review  relate  to  matters  which  the  Supreme  Court  declares  may 
lawfully  be  committed  to  the  uncontrolled  discretion  of  the  board. ^^ 
Where  the  discretion  is  so  wide  that  it  may  be  exercised  without 
announcing  the  reasons  on  which  it  is  based,  the  administrative 
judgment  seems  necessarily  free  from  judicial  review.  To  require 
the  administration  to  set  forth  in  its  answer  every  motive  aid 
circumstance  which  influenced  its  action  would  defeat  the  very 

^  103  Mo.  22  (1890). 

^  Slate  ex  rel.  Powell  v.  State  Medical  Examining  Board,  32  Minn.  324  (1SS4). 

*"  This  is  true  of  the  denial  of  a  license  to  sell  liquor,  Sherlock  v.  Stuart,  96  Mich. 
193  (1893),  where  based  on  the  ground  of  excessive  numbers,  State  ex  rel.  Howe  v. 
Norlhfield,  94  Minn.  81  (1904);  denial  of  a  license  to  keep  a  tavern  on  ground  place 
pro[)osedis  not  convenient,  Yeagcr,  ex  park,  11  Gratt.  (Va.)  655  (1854);  to  run  a 
theatre,  People  ex  rel.  Armstrong  v.  Murphy,  72  N.  Y.  Supp.  473  (1901);  to  conduct  a 
musical  entertainment,  on  the  ground  llial  it  would  have  a  demoralizing  influence 
ance  litjuors  were  dispensed  in  the  place  proi)()sod.  People  ex  rel.  Dorr  i'.  Thatcher,  42 
Hun  (N.  Y.)  349  (1S86);  to  erect  a  livery  stable,  Hester  v.  Thomson,  35  Wash.  119 
(1904);  to  construct  a  sidewalk.  State  ex  rel.  Connor  v.  St.  Louis,  158  Mo.  505  (1900); 
or  to  run  a  ferry,  on  the  groimd  that  the  public  necessity  did  not  require  it.  State  ex 
rel.  Cami)bell  v.  Cramer,  96  Mo.  75  (1888).  Cf.  Conunonwcalth  v.  Stale  Board  of  Health, 
4  Walker  (Pa.)  350  (1862).  In  Bailey  v.  \'an  Burcn  Circuit  Judge,  128  Mich.  627  (iQOi), 
where  the  board  declined  to  approve  a  druggist's  bond  on  the  ground  that  the  sureties 
were  insufficient,  the  court  refused  to  frame  for  the  jury  an  issue  as  to  good  faith. 


ADMINISTRATIVE  EXERCISE  OF  THE  POLICE  POWER.     283 

purpose  for  which  this  wide  discretion  is  vested.  But  Yick  Wo  v. 
Hopkins  ^^  is  still  law  to  the  effect  that  the  exercise  of  this  discretion 
is  improper  when  employed  arbitrarily  and  unjustly  to  discriminate 
against  a  certain  class.  One  who  had  been  denied  a  license  under 
such  circumstances  could  clearly  resist  criminal  prosecution.^^ 

Possibly  under  such  circumstances,  mandamus  would  lie  to  secure 
a  license.  In  the  opinion  from  the  Missouri  court  which  contained 
the  strongest  language  against  reviewing  the  administrative  dis- 
cretion by  mandamus,^^  it  was  said  that  the  discretionary  power  to 
refuse  a  certificate  to  practice  medicine  does  not  extend  to  dis- 
criminating against  any  particular  school  of  medicine.  And  in 
another  case  where  a  peremptory  mandamus  was  denied  to  over- 
rule the  decision  of  the  board  of  health  in  revoking  permits  to  sell 
milk,  that  court  suggested  that  relator  should  proceed  by  alternative 
mandamus  if  the  board  had  acted  arbitrarily  or  tyrannically.^*^  In 
another  decision  from  Missouri,  it  was  declared  obiter  that,  if  the 
board  withholds  a  license  from  caprice,  mandamus  will  lie  to  compel 
them  to  perform  their  duty,  even  though  the  ordinance  may  not 
provide  that  no  person  possessing  the  necessary  qualifications  shall 
be  refused  a  license. ^^  The  same  possibility  of  judicial  review  is 
suggested  by  another  dictum  which  states  that  to  secure  mandamus, 
it  is  not  sufficient  to  allege  in  general  terms  that  the  refusal  of  the 
permit  was  capricious,  tyrannical,  arbitrary  and  unreasonable,  but 
that  facts  tending  to  show  it  must  be  stated.'*- 

All  these  decisions,  however,  dealt  with  administrative  determina- 
tions reached  after  an  endeavor  to  ascertain  whether  the  applicant 
possessed  certain  qualifications  or  attainments  announced  as  the 
condition  on  which  all  should  be  entitled  to  receive  the  Hcense  or 
permit.  Where  the  board  is  not  required  to  set  forth  the  conditions 
which  are  to  control  its  discretion,  its  action  is  necessarily  in  a  cer- 
tain sense  capricious  and  arbitrary.  Since  no  applicant  has  ground 
of  complaint  merely  because  he  is  denied  permission  under  circum- 
stances identical  to  those  under  which  it  is  granted  to  another,  it 
must  be  exceedingly  doubtful  whether  he  could  coerce  the  issue  of 
a  Hcense  by  showing  further  that  licenses  were  invariably  denied  to 

87  118U.  5.356  (1S86).  8»  Ibid. 

89  State  ex  rel.  Granville  v.  Gregory,  83  Mo.  123  (18S4). 

90  People  ex  rel.  Lodes  v.  Board  of  Health,  i8q  N.  Y.  187  (1907). 

91  St.  Louis  V.  Lamp  INIfg.  Co.,  139  Mo.  560  (1897). 

92  People  ex  rel.  Shelter  v.  Owen,  116  N.  Y.  Supp.  502  (1909). 


284  HARVARD  LAW  REVIEW. 

some  group  or  class  to  which  he  belongs  under  circumstances  which 
uniformly  resulted  in  permission  being  accorded  to  others.  It  is 
more  likely  that  he  must  assume  the  risk  of  acting  without  per- 
mission, relying  on  the  discrimination  practiced  as  a  defense  when 
prosecuted  criminally. 

But  the  dicta  quoted  are  an  indication  that  where  the  discretion 
vested  is  not  unlimited,  mandamus  will  sometimes  lie  to  control  the 
action  of  the  board.  Where  their  discretion  is  confined  to  the  ascer- 
tainment of  matters  of  fact,  mandamus  may  be  employed  to  review 
the  assumption  of  power  to  determine  questions  of  law.^^  Thus  the 
writ  was  granted  where  the  return  of  building  commissioners  ad- 
mitted conditions  necessary  to  entitle  relator  to  his  certificate  and 
revealed  that  their  refusal  was  based  on  error  of  law.^^ 

And  where  in  any  other  way  the  pleadings  disclose  that  the  issue 
of  the  writ  will  not  interfere  with  the  exercise  of  discretion  but  will 
force  action  refused  on  some  other  pretense,  the  court  will  grant  re- 
lief. Thus  where  on  demurrer  to  the  petition  it  was  conceded  by  the 
board  that  the  relator  on  examination  had  exceeded  by  five  per 
cent  the  minimum  requirements  and  that  he  was  denied  his  certifi- 
cate ''wilfully  and  maliciously,"  redress  was  given  on  the  theory 
that  the  board  having  exercised  its  discretion  and  found  relator 
qualified,  the  issue  of  the  certificate  was  a  mere  ministerial  act.^^ 
The  writ  was  also  granted  where  the  discretion  vested  was  confined 
to  the  power  to  determine  the  reputability  of  the  college  from  which 
relator  received  his  diploma,  and  the  board  by  demurrer  confessed 
that  it  found  the  standing  of  the  institution  satisfactory,  but  denied 
the  license  through  malice  and  the  desire  to  injure  relator's  college 
in  order  to  promote  the  interests  of  a  rival  in  which  the  members 
of  the  board  were  personally  interested.''''  Having  determined  that 
the  college  was  reputable,  their  judicial  or  discretionary  power  was 
said  to  be  exhausted.  In  discussing  the  function  of  the  writ,  the 
court  declared  that  it  could  afford  a  remedy  where  the  discretionary 
power  was  exercised  with  "manifest  injustice"  or  where  "it  is 
clearly  shown  that  the  discretion  is  abused."  It  was  said  that  an 
officer  may  be  guilty  of  "so  gross  an  abuse  of  discretion  or  such  an 

»'  GaRC  V.  Censors,  63  N.  H.  92  (1884). 
"^  MacFarland  v.  Miller,  18  1).  C.  App.  554  (igoi). 
»'■  Dean  V.  Cami)l)ell,  50  S.  W.  294  (Tex.  1900). 

"»  The  Illinois  Stale  Hoard  of  Denial  E.xamincrs  v.  The  People  ex  rcl.  John  M. 
Cooper,  123  111.  227  (1887). 


ADMINISTRATIVE  EXERCISE  OF  THE  POLICE  POWER.     285 

evasion  of  positive  duty,  as  to  amount  to  a  virtual  refusal  to  perform 
the  duty  enjoined."  No  such  broad  principle  was  necessary  to  es- 
tablish the  right  to  relief  under  the  pleadings;  but  in  a  recent  Mis- 
souri decision,  the  issue  of  the  certificate  was  compelled  merely  be- 
cause the  court  differed  from  the  board  on  a  finding  of  fact."  The 
denial  of  the  certificate  was  based  on  the  finding  of  the  board  that 
the  applicant  was  not  a  matriculant  in  a  medical  school  prior  to  a 
certain  date.  The  court  ruled  that  the  evidence  before  the  board 
could  not  possibly  warrant  such  conclusion,  and  seemed  to  regard 
its  power  to  overrule  the  finding  of  the  board  in  the  same  light  as  its 
duty  to  set  aside  the  verdict  of  a  jury.  But  any  such  doctrine  must 
be  confined  to  determinations  based  merely  on  the  weighing  of  evi- 
dence and  involving  no  exercise  of  expert  judgment  or  opinion. 

Where  the  discretion  has  been  rightly  exercised,  the  court  will  not 
issue  mandamus  conditioned  on  compliance  by  the  relator  with  such 
lawful  changes  as  the  board  may  order.  "The  office  of  a  mandamus 
is  not  to  compel  action  by  the  building  department  in  advance  of 
the  preparation  and  adoption  of  proper  plans,  but  only  to  compel 
action  when  plans  affording  no  legitimate  ground  of  objection  have 
been  arbitrarily  or  unreasonably  condemned."  ^^ 

The  writ  will  not  issue  against  an  officer  subject  to  the  control  of 
some  higher  administrative  authority.  Thus,  where  a  building  com- 
missioner denied  a  permit  to  make  alterations  and  his  denial  was 
sustained  by  a  Board  of  Appeal,  the  court  held  that  he  had  no 
authority  under  the  statute  to  issue  the  permit  and  therefore  could 
not  be  constrained  by  mandamus.^^  Whether  some  action  might 
be  entertained  to  review  the  decision  of  the  Board  of  Appeal  was  not 
determined. 

Certiorari  proves  an  even  less  effective  remedy  than  mandamus; 
for  it  is  refused,  not  only  because  of  the  nature  of  the  decision 
sought  to  be  reviewed,^""  but  because  of    the  impotence  of   the 

"  State  ex  rel.  McCleary  v.  Adcock,  206  Mo.  550  (1907). 

^^  Hartmen  v.  Collins,  94  N.  Y.  Supp.  63  (1905). 

"  Greene  v.  Damrell,  175  Mass.  394  (1900). 

1""  In  Hildreth  v.  Crawford  ct  als.,  65  Iowa  339  (1884),  where  a  pharmacist's  license 
was  revoked  because  of  illegal  sales  of  intoxicants,  the  court  declared  that  where  the 
commissioners  of  pharmacy  are  clothed  with  power  to  determine  certain  facts,  theu: 
decision  cannot  be  reviewed  on  certiorari  upon  the  ground  that  the  evidence  was  in- 
competent or  insufficient;  and  in  State  ex  rel.  Puyallup  v.  Superior  Court,  50  Wash. 
650  (1908),  prohibition  was  issued  to  prevent  certiorari  to  review  the  act  of  the  council 
in  revoking  a  liquor  license,  on  the  ground  that  its  action  in  revoking  a  license  with- 


286  HARVARD  LAW  REVIEW. 

remedy.  "If  the  act  of  granting  a  license  is  merely  ministerial,  the 
writ  of  certiorari  will  not  lie  to  review  an  order  of  the  board,  because 
it  is  not  judicial  in  its  nature.  And  if  the  act  is  judicial,  yet  dis- 
cretionary in  character,  the  writ  will  not  lie  because  it  would  be 
contrary  to  a  discretionary  power  to  have  it  reviewed  by  way  of 
appeal,  or  by  any  proceeding  in  the  nature  of  an  appeal."  ^°^  The 
writ  has  been  denied  to  review  the  determination  of  a  board  of 
health  that  relator  was  not  entitled  to  a  license  to  sell  milk,  where 
under  the  statute  such  determination  might  be  reached  without 
granting  a  hearing,  on  the  ground  set  forth  in  the  opinion  that 
certiorari  lies  only  to  review  action  judicial  in  character,  and  a  judi- 
cial proceeding  implies  a  hearing  as  a  matter  of  right  to  the  person 
affected  thereby.^'^^ 

In  some  jurisdictions,  however,  certiorari  is  emplo}'ed  to  re\aew 
administrative  action  not  necessarily  judicial  in  nature.  There  it 
seems  to  afford  the  same  opportunities  for  redress  which  are  avail- 
able in  mandamus  proceedings.  In  Pennsylvania,  though  certiorari 
is  denied  to  review  the  exercise  of  discretion  in  granting  or  refusing 
a  license  to  sell  liquor,^"^  it  is  employed,  where  there  has  been  a 
hearing,  to  ascertain  whether  the  licensing  authority  has  kept  within 
the  limits  of  the  powers  conferred  and  has  exercised  them  in  con- 
formity with  law.  It  was  decreed  that  where  there  was  no  discre- 
tion to  refuse  a  license,  the  denial  of  the  board  should  be  reversed 
and  a  procedendo  awarded. ^"^  In  New  Jersey,  relief  against  the 
revocation  of  a  license  was  granted  for  the  express  reason  that  the 
board  had  failed  to  accord  a  hearing.^"''  In  an  Iowa  decision  which 
denied  certiorari  on  the  ground  that  it  is  unavailable  to  review  the 
correctness  of  decisions  of  fact  within  the  jurisdiction  vested,  it  was 

out  cause  and  refunding  the  unearned  portion  of  the  license  fee  is  conclusive  and  not 
subject  to  review  Ijy  the  courts. 

""  Com'rs  of  Raleigh  v.  Kane,  2  Jones  L.  R.  (47  N.  C.)  2S8  (1S55). 

ii^  People  ex  rel.  Lodes  v.  Department  of  Health  of  the  City  of  New  York,  100  N.  Y. 
Supp.  788  (1906),  afTirmcd  on  appeal  without  opinion  in  102  N.  Y.  Supp.  1145  (1907). 

But  in  the  same  jurisdiction  it  may  possibly  lie  inferred  that  certiorari  is  not  neces- 
sarily improper  to  review  tiie  revocation  of  a  license  after  a  hearing,  for  the  denial  of 
the  writ  has  been  placed  on  the  ground  tliat  it  was  nol  requested  in  season  to  award 
relief  before  the  expiration  of  the  license.  reo|)le  ex  rd.  Pechtold  v.  Bogart,  107  N.  Y, 
Supp.  831  (1907). 

'<"  Reed's  Appeal,  114  Pa.  St.  452  (18S6). 

""  Pollard's  Petition,  127  Pa.  St.  507  (1880). 

'"^  Hailing  j'.  Board  of  Excise  of  City  of  Klizabeth  d  al.,  74  Atl.  277  (N.  J.  1909). 


ADMINISTRATIVE  EXERCISE  OF  THE  POLICE  POWER.     2S7 

stated  ohiter  that  certiorari  may  consider  whether  the  defendant  has 
exceeded  his  proper  jurisdiction  or  is  otherwise  acting  illegally,  and 
that  relief  would  be  given  if  the  determination  had  been  reached 
without  a  hearing.^"^  But  this  employment  of  the  writ  to  review  ac- 
tion not  judicial  in  nature  runs  counter  to  the  great  weight  of 
authority. 

Where  there  exists  a  recognized  ground  of  equitable  jurisdiction, 
it  seems  that  the  Hcensing  authority  may  be  enjoined  from  taking 
any  action  with  respect  to  the  granting  or  refusal  of  a  license,  if 
the  statute  under  which  it  claims  authority  is  unconstitutional. ^°^ 
But  an  injunction  will  not  issue  merely  because  the  beard  seems 
about  to  make  a  mistake  in  deciding  whether  a  license  shall  be 
granted.  Where  it  was  sought  to  prevent  a  sealer  of  weights  and 
measures  from  deciding  whether  he  would  approve  of  a  certain  kind 
of  computing-scale,  on  the  ground  that  he  intended  to  condemn  all 
scales  of  the  given  variety,  it  was  held  that  the  correctness  of  this 
kind  of  scale  was  not  properly  in  issue,  because  the  court  could  not 
take  from  the  officer  the  duty  of  deciding  the  question  on  the 
ground  that  he  intends  to  come  to  a  wrong  decision.^"^  In  another 
case  injunction  was  denied  to  restrain  the  revocation  of  a  hcense,  on 
the  ground  that  the  board  had  the  right  to  proceed  to  revoke  even 
if  they  were  about  to  act  erroneously,  and  that  the  statute  giving 
an  appeal  to  the  district  court  on  questions  of  law  and  fact  fur- 
nished an  adequate  remedy.^"^  Such  remedy  as  is  afforded  by  the 
possibility  of  securing  the  license  by  mandamus  would  seem  suffi- 
cient ground  for  denying  the  interposition  of  equity  in  all  cases 
where  no  positive  interference  is  threatened. 

Moreover,  it  has  been  held  that  injunction  will  not  lie  to  restrain 
a  board  of  health  from  interfering  with  a  business  for  which  a  per- 
mit was  denied,  however  wrongfully,  where  the  statute  provides 
pecuniary  penalties  for  the  violation  of  their  orders,  for  this  is  in  the 
nature  of  an  appeal  to  equity  to  restrain  public  officers  from  enforc- 
ing the  criminal  law."°  But  a  contrary  result  was  reached  where 
the  court  held  that  the  rule  that  equity  will  not  enjoin  the  enforce- 
ment of  a  penal  ordinance  is  limited  to  attempts  to  restrain  judicial 

los  Iowa  Eclectic  Medical  College  Ass'n  v.  Schrader,  67  la.  659  (1893). 
'"^  Moneyweight  Scale  Co.  v.  McBride,  199  Mass.  503  (1908),  (sanblc). 

108  Ibid. 

109  Wolf  V.  State  Board  of  Medical  Examiners,  123  N.  W.  1074  (Minn.  1909). 
"0  Cohen  v.  Department  of  Health,  113  N.  Y.  Supp.  88  (1908). 


288  HARVARD  LAW  REVIEW. 

enforcement,  and  restrained  a  board  from  closing  the  plaintiff's 
place  of  business  for  the  alleged  violation  of  a  liquor  ordinance.^" 
Where  the  enforcement  threatened  is  not  penal  in  its  nature,  a  bill 
will  be  granted  to  restrain  unlawful  action,  provided  there  is  some 
basis  of  equitable  jurisdiction.  The  immediate  incarceration  in  a 
pest  house  of  one  afflicted  with  leprosy  has  been  restrained  where  it 
appeared  that  less  stringent  measures  would  afford  adequate  pro- 
tection to  the  public."-  The  court  doubted  whether  an  action  for 
damages  would  be  an  adequate  remedy,  even  if  one  would  he,  but 
were  of  opinion  that  the  officers  would  not  be  personally  responsible 
for  such  an  error  in  honest  judgment  of  what  their  official  duty  re- 
quired. In  a  case  where  a  bill  to  enjoin  the  enforcement  of  an  ordi- 
nance requiring  the  registration  of  plumbers  was  dismissed  because 
the  ordinance  was  held  to  be  valid,  the  court  observed  that  even  if 
it  were  void,  no  individual  plumber  could  secure  an  injunction  be- 
cause no  property  right  was  involved,  but  that  the  firm  employ- 
ing plumbers  might  secure  such  relief  because  there  was  a  threatened 
invasion  to  property  rights  in  that  their  business  would  be  greatly 
injured  if  they  were  prevented  from  securing  the  services  of  plumb- 
ers."^ It  is  not  inconceivable  that  the  individual  plumber  might 
also  feel  that  his  business  would  be  greatly  injured  if  he  were  pre- 
vented from  securing  employment. 

It  is  manifest,  then,  that  where  the  lawfulness  of  any  action  may 
be  conditioned  on  the  possession  of  a  license,  the  individual  is  largely 
dependent  upon  the  judgment  of  the  administrative  body  to  whom 
the  duty  of  passing  upon  his  qualifications  is  entrusted.  Without  a 
license  he  proceeds  at  his  peril.  Where  there  is  power  to  regulate 
and  the  standards  imposed  relate  to  the  matter  under  supervision, 
but  are  invahd  merely  because  of  their  excess,  the  one  denied  per- 
mission cannot  proceed  without  a  permit,  but  is  limited  to  the  right 
to  enforce  the  issue  of  a  license  or  permit  on  compliance  with  stand- 
ards deemed  adequate  by  the  court.  A  builder  cannot  erect  a  wall 
according  to  his  fancy,  although  the  requirements  of  the  admin- 
stration  may  be  excessive."'*    It  has  been  held  that  a  showing  of 

"^  Canon  City  ci  al.  v.  Manning  el  al.,  95  Pac.  537  (Col.  1008). 

"2  Kirk  V.  Wyman,  83  S.  C.  372  (1000).  In  ChicaRo  v.  'I'he  I'Vrris  Wheel  Co.,  60  111. 
App.  384  (1805),  the  city  was  enjoineii  from  interfering  wi'li  t'lt-'  Ferris  Wheel  for  non- 
payment of  a  license  fee  which  the  court  a(liuil!.;cil  cxorljitant. 

"•■'  Robinson  v.  City  of  Galveston,  11 1  S.  W.  1076  (Te.x.  1008). 

"•»  City  of  New  York  v.  O.  J.  Gude  Co.,  107  N.  Y.  Supp.  484  (1907),  {semble). 


ADMINISTRATIVE  EXERCISE  OF  THE  POLICE  POWER.     289 

qualifications,  a  tendered  compliance  with  all  the  terms  and  con- 
ditions of  the  license  ordinance,  and  an  arbitrary  and  wrongful  re- 
fusal by  the  municipal  authorities  to  issue  the  hcense  does  not 
waive  the  necessity  of  such  hcense  or  justify  acts  done  without  it."^ 
But  the  minority  opinion  insisted  that  such  a  doctrine  applies  only 
when  the  board  has  discretion  to  refuse  the  license.  In  an  earlier 
decision  in  the  same  jurisdiction,  where  the  license  was  withheld  by 
a  ministerial  officer  after  the  licensing  authority  had  ordered  its 
issue,  it  was  held  that  no  conviction  could  be  sustained  for  acting 
without  the  license.  The  wrong  was  said  to  be  that  of  the  officer, 
not  of  the  applicant.^^^ 

And  it  is  clear  that  a  prosecution  for  unlicensed  acts  may  be  de- 
feated by  showing  that  the  statute  under  which  the  license  is  re- 
quired is  not  a  vahd  pohce  measure,  because  a  mere  pretense  for 
exacting  revenue,  because  the  matter  to  which  it  relates  is  not  sub- 
ject to  police  supervision,^^^  because  the  qualifications  or  condi- 
tions required  are  not  germane  to  the  matter  under  regulation,^^^ 
because  the  statute  discriminates  unwarrantably  against  certain 
members  of  the  class  required  to  be  licensed,^^^  or  permits  such  dis- 
crimination to  be  made  by  the  licensing  authority,^-'^  or  because 
the  uncontrolled  discretion  lawfully  vested  is  employed  unreasonably 
to  discriminate  against  the  class  to  which  the  defendant  belongs.^^^ 

Thomas  Reed  Powell. 
Burlington,  Vt. 

[To  be  continued.] 

"^  City  of  Montpelier  v.  Mills,  85  N.  E.  6  (Ind.  1908),  and  cases  cited  in  the  opinion. 
Cf.  Phoenix  Carpet  Co.  v.  The  State,  22  So.  627  (Ala.  1897),  which  held  that  wrongful 
refusal  to  receive  payment  of  a  tax  and  to  issue  a  license  does  not  justify  corporation 
in  doing  business  without  the  license.  Its  remedy  is  by  mandamus  to  compel  the  issue 
of  the  license. 

"«  Padgett  V.  The  State,  93  Ind.  396  (1884). 

"'  Bessette  v.  The  People,  193  111.  334  (1901). 

"*  Cummings  v.  Missouri,  4  Wall.  (U.  S.)  277  (1866). 

"9  State  V.  Gardner,  58  Oh.  St.  599  (1888);  Harmon  v.  The  State,  66  Oh.  St.  249 
(1902);  State  V.  Gantz,  124  La.  535  (1909);  Commonwealth  v.  Shafer,  32  Pa.  Super. 
Ct.  497  (1907). 

12"  Yick  Wo  V.  Hopkins,  118  U.  S.  356  (1886). 

^1  Ibid.,  as  qualified  in  Crowley  v.  Christensen,  137  U.  S.  86  (1S90). 


19 


ADMINISTRATIVE    EXERCISE    OF   THE 
POLICE    POWER. 

[Continued.] 

II. 

Administrative  Orders  and  Execution. 

PRECAUTIONARY  regulation  cannot  always  afford  adequate 
protection  to  public  health  and  safety.  Many  acts  must  be 
prohibited  altogether,  irrespective  of  the  personal  quahfications  of 
those  who  would  undertake  them;  and  the  denial  of  permission  to 
proceed  obviously  cannot  guard  against  the  perils  which  arise  from 
natural  conditions  and  human  neglect.  The  exercise  of  the  poUce 
power  will  therefore  often  take  the  form  of  absolute  prohibition  and 
of  specific  commands  to  take  positive  remedial  action,  or  even  of 
such  action  by  governmental  authorities. 

Here,  as  in  precautionary  regulation,  the  importance  of  expert 
judgment  and  of  flexibility  in  the  law  induces  the  legislature  to 
vest  wide  powers  in  administrative  bodies.  The  discretion  so  vested 
may  consist  in  the  power  to  issue  general  regulations,  supplementing 
the  statute,  and  relating  to  designated  acts  or  conditions  wherever 
committed  or  existing  within  the  area  over  which  the  administra- 
tive authority  has  jurisdiction.  These  general  regulations  may  be 
unlimited  as  to  time,^  or  promulgated  only  for  some  temporary 
emergency."  In  other  instances  the  statute  may  itself  condemn 
certain  physical  conditions,  and  vest  in  some  administrative  body 

1  State  V.  Speyer,  infra,  p.  344. 

2  Jew  Ho  V.  Williamson,  infra,  p.  341. 


334  HARVARD  LAW  REVIEW. 

the  power  to  direct  the  alterations  to  be  made  by  specific  orders  in 
each  individual  case;  ^  or  the  board  may  be  authorized  to  select  the 
particular  property,  acts,  or  practices  assumed  to  be  hazardous,  and 
direct  such  discontinuance  or  modification  as  it  may  judge  neces- 
sary.'* Finally,  the  administration  may  be  empowered  to  take  ac- 
tion itself,  forcibly  interfering  with  person  or  property  to  apply 
the  necessary  remedy.^ 

A.     Necessity  for  Notice  and  Hearing. 

(i)  General  Regulatiofis.  —  Where  the  persons  affected  by  any 
regulation  or,  order  cannot  be  definitely  known,  the  requirement 
that  they  must  have  notice  and  an  opportunity  to  be  heard  before 
its  issue  would  obviously  defeat  the  exercise  of  the  power  vested. 
Accordingly  the  granting  of  such  opportunity  is  not  deemed  a  pre- 
requisite to  the  issue  of  regulations  general  in  scope.  In  Belcher  v. 
Farrar  ^  it  was  held  that  the  order  of  the  board  of  health  prohibiting 
the  manufacture  of  kerosene  within  the  town  limits  was  not  invali- 
dated by  the  fact  that  it  was  passed  without  first  giving  notice  to 
those  engaged  in  carrying  on  the  trade. 

(2)  Special  Orders.  —  Often  the  order  of  the  board  will  relate 
only  to  a  named  individual.  The  legislature  may  itself  designate 
the  objects  or  acts  which  it  deems  dangerous,  and  leave  to  the  ad- 
ministrative body  only  the  power  to  specify  the  remedial  action 
to  be  taken  in  each  particular  case.  Here  there  is  no  inherent  reason 
why  the  individual  concerned  may  not  be  given  an  opportunity 
to  be  heard.  But  here  also  such  opportunity  is  not  deemed  essen- 
tial to  due  process. 

The  statute  under  consideration  in  Health  Department  v.  Rector 
of  Trinity  Church  ^  required  that  all  houses  of  a  certain  description 
should  "upon  direction  of  the  board  of  health  "  be  supplied  with 
water  "in  sufficient  quantity"  at  one  or  more  places  on  each  floor 
occupied  by  a  family.  The  owner  objected  that  the  order  of  the 
board  was  made  without  notice  to  him.  JUit  the  court  replied  that 
the  changes  might  have  been  ordered  specifically  by  {he  legislature 

'  Health  Deparlmcnt  v.  Trinity  Church,  infra. 

*  Board  of  Health  v.  Copcutt,  infni,  p.  x^S- 

'  North  American  Cold  Storage  Co.  v.  Chicago,  infra,  p.  336. 

«  8  Allen  (Mass.)  325  (1864). 

»  145  N.  Y.  32  (189s). 


ADMINISTRATIVE  EXERCISE  OF  THE  POLICE  POWER.     335 

without  giving  notice  to  persons  to  be  affected  thereby,  and  as- 
serted that  the  fact  that  the  legislature  had  chosen  to  delegate  a 
certain  portion  of  its  powers  to  the  board  of  health  did  not  alter  the 
principle. 

The  order  in  this  case,  though  relating  to  an  individual  piece  of 
property,  was  not  in  the  nature  of  an  adjudication,  requiring  the 
ascertainment  of  facts  from  conflicting  evidence,  but  was  merely  the 
declaration  of  the  will  of  the  governing  authority,  —  the  Aiaking  of 
a  special  regulation  to  fill  in  the  details  of  the  statute,  which  by 
reason  of  the  flexibility  of  its  requirements  may  be  regarded  merely 
as  an  amalgam  of  separate  statutes  passed  in  respect  to  each  mem- 
ber of  the  class  to  which  its  general  provisions  relate,  r  The  legisla- 
ture might  have  passed  a  special  enactment  for  each  tenement  house 
in  the  state;  so  that  the  court  was  clearly  justified  in  appl}-ing  the 
same  principle  adopted  with  respect  to  regulations  more  general  in 
scope. 

(3)  Adjudications.  —  The  administrative  action  to  which  a  prop- 
erty owner  objects  may  consist  in  a  determination  or  adjudication 
that  dangerous  or  unsanitary  conditions  exist,  as  well  as  a  declaration 
of  the  remedial  action  deemed  necessary.  Where  the  property  ad- 
mittedly falls  within  the  ban  of  some  administrative  prohibition  be- 
cause of  certain  characteristics  inhering  in  all  property  of  the  same 
general  nature  or  devoted  to  the  same  general  purposes,  we  have 
merely  an  exercise  of  the  general  ordinance  power  already  con- 
sidered. But  when  the  owner  denies  that  his  estate  is  within  the 
iniquitous  class,  and  the  administrative  order  involves  a  determi- 
nation of  the  dispute,  or  where  it  is  based  on  conditions  peculiar  to 
the  individual  parcel,  we  have  action  commonly  deemed  to  be  of  a 
judicial  nature,  where  notice  and  an  opportunity  to  be  heard  is  sup- 
posed to  be  essential.  But  even  here,  the  doctrine  prevails  that  such 
notice  and  hearing  may  be  dispensed  with. 

In  an  action  for  penalties  for  violating  the  orders  of  a  board  of 
health  relative  to  the  destruction  of  a  certain  dam  and  a  bill  to  en- 
join further  violation,^  it  was  held  that  the  defendant  had  no  ground 
of  complaint  merely  because  the  order  which  decreed  the  destruc- 
tion of  his  particular  piece  of  property  was  passed  without  notice 
and  an  opportunity  to  be  heard.  The  same  court  refused  to  review 
the  proceedings  of  the  board  by  certiorari,  on  the  ground  that  it 

8  Board  of  Health  v.  Copcutt,  140  N.  Y.  12  (1893). 


336  HARVARD  LAW  REVIEW. 

had  the  right  to  act  "upon  its  own  inspection  and  knowledge  of 
the  alleged  nuisance,"  and  could  obtain  its  infonnation  "from  any 
source  and  in  any  way."  ^ 

But  in  all  these  instances,  the  issue  of  some  regulation  or  special 
order  is  in  itself  merely  a  threatened,  not  an  actual,  invasion  of  prop- 
erty right.  Where  it  is  not  to  be  enforced  without  first  giving  the 
owner  an  opportunity  to  comply  with  its  demands,  he  may  reach 
the  ear  of  some  chancellor  and  urge  other  reasons  for  enjoining  the 
enforcement  of  the  administrative  order,  than  that  it  was  issued 
without  granting  him  prior  audience.^" 

(4)  Summary  Execution.  —  Meanwhile,  however,  the  danger 
which  the  administration  sought  to  avert  may  already  ha\'e  ac- 
crued. In  the  removal  or  destruction  of  conditions  dangerous  to  pub- 
lic health  and  safety,  prompt  action  is  often  of  the  utmost  necessity. 
The  administration  is  therefore  often  authorized  to  remove  or  de- 
stroy property  without  even  notifying  the  owner  that  any  action  is 
contemplated.  Such  summary  execution  is  not  improper  merely 
because  the  owner  had  no  prior  opportunity  to  take  action  himself 
or  to  dissuade  the  board  from  acting. ^^ 

In  dismissing  a  bill  seeking  to  enjoin  health  officials  from  destroy- 
ing certain  poultry  in  cold  storage  without  first  giving  the  owner  an 
opportunity  to  be  heard  as  to  its  condition,  the  Supreme  Court 
refers  to  the  difficulty  of  guarding  against  the  peril  from  unwhole- 
some conditions  while  the  hearing  is  in  progress,  and  holds  that  in 
matters  relating  to  the  destruction  of  food  not  fit  for  human  use,  the 
question  whether  the  danger  to  the  public  health  is  such  as  to  require 
the  denial  of  this  preliminary  hearing  is  one  for  the  reasonable  dis- 
cretion of  the  legislature.^^  They  held  that  this  boundary  had  not 
been  transgressed,  in  spite  of  the  complainant's  plea  that  the  denial 
of  a  hearing  is  unnecessary  as  to  the  condition  of  food  in  cold 
storage,  which  can  do  no  harm  until  it  is  removed. 

The  owner  complained  also  that  he  was  not  permitted  to  carry 
on  his  ordinary  business  until  he  delivered  the  poultry  claimed  to  be 
diseased.    The  point  was  waived  in  order  to  secure  a  decision  simjilv 

»  People  ex  rel.  Copcutt  v.  Hoard  of  llciillli,  140  N.  Y.  i  (1S93). 

"  Sec  infra,  "Judicial  Review." 

"  This  power  vested  in  admiiiislra(i\e  aulliorilies  is  no  greater  tlian  tlial  exercised 
by  individuals.  .A  private  individual  may  al)ale  summarily  a  pulilie  nuisance  by  which 
he  is  specially  aggrieved.    See  cases  cited  in  Fields  v.  Stokely,  90  Pa.  St.  306  (18S2). 

"  North  American  Cold  Storage  Co.  v.  Chicago,  2n  U.  S.  306  (1908). 


ADMINISTRATIVE  EXERCISE  OF  TEE  POLICE  POWER.     337 

as  to  the  omission  of  a  hearing;  but  the  court  observed  that  such 
action  would  seem  to  have  been  arbitrary  and  wholly  unnecessary. 
It  would  seem,  however,  that  if  authorized  by  the  statute,  it  should 
be  sustained.  When  the  owner  refuses  to  separate  the  bad  from 
the  good,  adequate  protection  requires  that  he  be  prevented  from 
distributing  any  of  the  products  so  intermingled. 

Thus  it  is  estabHshed  that  the  granting  of  an  opportunity  to  be 
heard  is  not  a  prerequisite  of  the  vaHdity  of  administrative  action 
in  the  exercise  of  the  pohce  power,  whether  it  take  the  form  of 
the  issue  of  a  general  or  special  regulation,  a  determination  that 
certain  property  constitutes  a  nuisance,  or  forcible  destruction  or 
removal. 

This  power  of  summary  administrative  action  without  notice  and 
an  opportunity  to  be  heard  is  sustained  also  with  respect  to  the  for- 
cible removal  to  a  pest-house  of  a  person  infected  with  a  contagious 
disease, ^^  and  it  seems,  also,  a  person  having  the  appearance  or  symp- 
toms of  a  contagious  disease ;  ^^  the  confinement  to  his  home  and 
quarantining  of  a  person  reasonably  but  erroneously  believed  to  be 
infected  with  a  contagious  disease;  ^^  the  seizure  of  samples  of  milk 
for  purposes  of  analysis;  ^^  the  destruction  of  that  found  below 
standard,^^  and  similar  destruction  of  commercial  fertilizers  which, 
though  innocuous,  are  equally  impotent  to  do  good,  and  therefore 
valueless  for  commercial  purposes;  ^^  the  seizure  of  intoxicating 
liquor  kept  and  intended  for  unlawful  use,^^  and  of  property  deemed 
unsuitable  for  any  righteous  purpose,  such  as  gambhng  instru- 
ments; -°  and  the  removal  and  incidental  destruction  of  articles 
which,  though  capable  of  lawful  use,  are  actually  employed  for 

13  Haverty  v.  Bass,  66  Me.  71  (1876). 

"  Brown  v.  Purdy,  8  N.  Y.  St.  Reporter  143  (1886),  (semble). 

15  Beeks  v.  Dickinson  County  et  al.,  131  la.  244  (1906);  Valentine  i;.  Englewood,  76 
N.  J.  L.  509  (1908). 

1^  Commonwealth  v.  Carter,  132  Mass.  12  (1882). 
1'  Deems  v.  Baltimore,  80  Md.  164  (1894). 

18  Patapsco  Guano  Co.  v.  Board  of  Agriculture,  171  U.  S.  345  (1898).  Cf.  Buttfield 
V.  Stranahan,  192  U.  S.  470  (1904),  for  similar  action  by  federal  authorities  under  the 
power  to  exclude  imports  from  foreign  countries. 

19  State  t;.  O'Neil,  58  Vt.  140,  161  (1885). 

20  J.  B.  Mullen  &  Co.  v.  Mosley,  13  Idaho  457  (1907),  Police  Commissioners  v.  Wag- 
ner, 93  Md.  182  (1901),  and  cases  cited  in  the  opinion.  Contra,  Lo\\t>-  v.  Rainwater,  70 
Mo.  152  (1879):  "The  vices  which  acts  authorizing  these  summary  proceedings  pro- 
pose to  eradicate  are  inconsiderable  in  comparison  with  the  value  of  the  constitutioaal 
guarantees  which  secure  to  the  citizen  his  liberty  and  his  property." 

22 


338  HARVARD  LAW  REVIEIV. 

illegal  purposes  in  such  a  manner  that  their  forcible  removal  is  the 
only  method  of  terminating  promptly  a  continuing  and  persisting 
violation  of  the  law,  effected  without  the  aid  of  renewed  or  repeated 
activity  of  any  human  agency .^^ 

In  the  Supreme  Court  the  power  of  summary  removal  of  articles 
so  violating  the  law  is  confined  to  those  of  trifling  value.--  Tliis 
limitation  prevents  the  exercise  of  summary  administrative  action 
to  secure  the  seizure  and  sale  of  teams  employed  unlawfully  in  cutting 
timber  on  public  lands, ^^  and  of  boats  or  vessels  used  by  one  person 
in  interfering  with  oysters  or  other  shell-fish  belonging  to  another.-^ 
It  is  held  that  judicial  proceedings  are  always  necessary  where  the 
sale  and  not  the  destruction  of  property  is  to  be  effected.  The  courts 
sanction  the. summary  removal  of  wooden  roofs  and  buildings  con- 
structed in  defiance  of  the  building  laws;  -^  but  reasonable  care  must 
be  taken  to  preserve  the  materials  for  the  owner.-^  In  the  cases  re- 
lating to  buildings,  notice  to  the  owner  preceded  the  abatement  by 
the  administration;  but  in  the  Indiana  decision  it  was  declared  that 
buildings  erected  in  violation  of  the  building  laws  are  public  nui- 
sances, and  that  public  nuisances  may  be  abated  without  notice. 


B.  Judicial  Review. 

Though  administrative  action  is  not  deemed  improper  merel}'  on 
the  ground  that  notice  and  an  opportunity  to  be  heard  are  absolutely 
essential,  the  validit?y  of  orders  issued  or  of  action  taken  may  be 
questioned  in  judicial  proceedings  of  various  kinds. 

Where  theofficers  have  alreadyaccomplishcd  their  object  by  direct 
physical  invasion  of  property,  judicial  redress  is  necessarily  limited 
to  a  suit  for  damages.  If,  however,  the  administrative  action  con- 
sists only  in  a  threatened  invasion  or  in  an  order  to  the  owner  to  take 
action  himself,  the  courts  are  open  to  receive  his  motion  for  a  bill  of 
injunction.    If  under  the  statute  the  administration  sues  for  the  ex- 

2'  Lawton  v.  Steele,  119  N.  Y.  226  (iSqo).  Contra,  Icck  v.  -Vndcrson,  57  Cal.  251 
(1881). 

"  Lawton  v.  Steele,  152  U.  S.  133  (1894). 

2'  Dunn  V.  Burleigh,  62  Me.  24  (1873). 

"  Colon  V.  Lisk,  153  N.  Y.  188  (1897). 

^  King  j;.  Daveniiurt,  98  111.  305  (18S1);  I  line  v.  New  Haven,  40  Conn.  478  (1873); 
Baumgarten  v.  Hasty,  loo  Ind.  575  (1885). 

''"  Eichenlaub  v.  St.  Joseph,  113  Mo.  395  (1892). 


ADMINISTRATIVE  EXERCISE  OF  THE  POLICE  POWER.     339 

pense  of  executing  its  order  after  its  non-observance  by  the  owner, 
his  defense  may  question  the  propriety  of  the  steps  taken.  And  the 
same  privilege  obtains  where  the  administration  itself  calls  upon  the 
court  for  aid  in  enforcing  its  decree,  or  to  punish  the  owner  for 
disobedience. 

In  all  these  instances,  the  possibility  of  raising  the  question  is 
manifest.  The  problem  is  to  discover  what  respect  the  courts  will 
pay  to  the  expressed  opinion  of  the  administration.  How  far  will 
they  annul  or  revise  the  administrative  requirements? 

The  language  of  some  opinions  has  seemed  to  indicate  that  the 
courts  will  not  question  the  administrative  determination  that  cer- 
tain conditions  constitute  a  nuisance.^^  But  against  any  possible 
contention  of  such  finality  or  conclusiveness  stands  the  well-nigh 

2^  In  Kennedy  v.  Board  of  Health,  2  Pa.  St.  366  (1845),  the  court  excluded  evidence 
as  to  the  cause  of  a  nuisance  in  an  action  for  the  expense  of  its  abatement,  and  declared: 
"It  is  not  easy  to  perceive  the  relevancy  of  such  evidence,  unless  it  was  intended  to 
show  by  it,  that  there  was  in  reality  no  nuisance  to  be  removed.  But  this  latter  could 
not  be  proved,  for  the  act  of  Assembly  on  the  subject  makes  the  order  of  the  board 
conclusive,  and  expressly  enacts  that  the  fact  of  the  nuisance  shall  not  be  inquired  into. 
The  board  decided  that  the  nuisance  existed  on  the  lot  of  the  defendant,  and  the  fact 
being  so  determined,  it  made  no  difference  from  what  cause  it  arose."  But  in  this 
case  the  owner  did  not  deny  the  existence  of  the  nuisance,  but  tendered  his  evidence  to 
show  that  it  was  caused  by  others,  who  should  bear  the  expense  of  abatement. 

In  St.  Louis  V.  Stern,  3  Mo.  App.  48  (1876),  a  prosecution  for  failure  to  abate  a 
nuisance,  the  court  observed:  "When  the  Legislature  delegates  to  certain  municipal 
agents  a  general  power  to  provide  for  the  preservation  of  the  public  health  by  the 
removal  of  nuisances,  an  adjudication  by  such  agents  upon  the  fact  of  a  nuisance  ex- 
isting within  their  local  jurisdiction  is  conclusive."  But  the  qualification  was  added: 
"At  least,  in  every  case,  where  the  subject  matter  comes  within  the  classifications  of 
prima  facie  nuisances,  and  nuisances  per  se." 

In  Green  v.  The  Mayor,  6  Ga.  i  (1849),  the  court  declined  to  review  on  certiorari 
the  validity  of  an  ordinance  prohibiting  the  growing  of  rice,  saying  that  the  judgment 
of  the  Council  upon  the  question  of  nuisance  was  "conclusive  evidence  of  that  fact." 
"Legislative  bodies  judge  of  the  exigency  upon  which  their  laws  are  founded;  and 
when  they  speak,  their  judgment  is  implied  in  the  law  itself."  The  language  used  is 
broad  enough  to  forbid  judicial  review  in  whatever  proceeding  the  question  arises; 
but  from  subsequent  decisions  in  the  same  jurisdiction,  it  is  clear  that  the  doctrine 
is  not  applied  to  proceedings  other  than  those  which  seek  to  prevent  the  administration 
from  executing  its  determination.  Mayor  v.  Mitchell,  79  Ga.  807  (1887);  Mayor  v. 
Mulligan,  95  Ga.  323  (1S93);  Western  &  Atlantic  R.  R.  Co.  v.  Atlanta.  113  Ga. 
537  (1901).  Moreover,  Green  v.  The  Mayor  is  rested  on  the  authority  of  Martin  v. 
Mott,  12  Wheat.  (U.  S.)  19,  which  principle,  says  the  court,  "  applies  with  greater 
force  to  the  law-making  power  itself,  than  to  any  single  officer  of  the  Goveniment." 
But  in  Martin  v.  Mott  the  determination  declared  conclusive  related  to  the  necessity 
of  calling  forth  the  militia,  the  exercise  of  a  high  executive  prerogative,  with  which 
the  courts  never  interfere. 


340  HARVARD  LAW  REVIEW. 

universal  authority .^^  The  decisions  which  overrule  the  objection 
that  the  administrative  action  was  taken  without  granting  an  oppor- 
tunity to  be  heard  insist  that  this  ruling  is  possible  only  because  the 
administrative  determination  cannot  be  conclusive  upon  the  owner, 
and  that  a  hearing  on  the  disputed  question  may  later  be  obtained 
in  judicial  proceedings.-^ 

But  though  the  courts  cling  tenaciously  to  the  right  to  rex-iew, 
they  announce  repeatedly  that  respect  is  due  to  the  opinion  of  the 
administration.  In  Commonwealth  v.  Patch  ^°  the  court  declared 
that  in  the  absence  of  evidence  to  the  contrary,  it  would  assume  that 
the  by-law  prohibiting  the  keeping  of  swine  in  particular  parts  of 
the  city  was  reasonable.  Likewise,  in  an  action  to  restrain  the  land- 
ing of  persons  infected  with  cholera,  Judge  Cullen  declared  that  the 
question  "is  one  resting  in  the  discretion  of  the  health  ojficer,  as  is 
also  the  selection  of  an  appropriate  site  for  the  landing;  and  in  the 
absence  of  an  abuse  of  discretion,  his  decision  in  tliis  respect  will 
not  be  interfered  with  by  the  courts."  ^^ 

28  In  a  bill  to  enjoin  the  destruction  of  a  dock  declared  to  be  a  nuisance,  Mr.  Justice 
Miller  declared:  "It  is  a  doctrine  not  to  be  tolerated  in  tliis  country  that  a  municipal 
corporation,  without  any  general  laws  either  of  the  city  or  the  state,  within  which  a 
given  structure  can  be  shown  to  be  a  nuisance,  can,  by  its  mere  declaration  that  it  is 
one,  subject  it  to  removal  by  any  person  supposed  to  be  aggrieved,  or  even  by  the  city 
itself.  This  would  place  every  house,  every  business,  and  all  the  property  of  the  city, 
at  the  uncontrolled  will  of  the  temporary  local  authorities."  Yates  v.  IMilwaukec,  lo 
Wall.  (U.  S.)  497  (1870). 

In  Hutton  v.  Camden,  39  N.  J.  L.  122  (1876),  the  court  held  that  it  was  error  to  ex- 
clude evidence  of  the  condition  of  the  premises  in  a  suit  by  the  board  of  health  for  the 
expense  of  abating  what  they  had  declared  to  be  a  nuisance.  "The  authority  to  decide 
when  a  nuisance  exists,  is  an  authority  to  find  facts,  to  estimate  their  force,  and  to 
apply  rules  of  law  to  the  case  thus  made.  .  .  .  The  finding  of  a  sanitary  committee,  or 
of  a  municipal  council,  or  of  any  ])ody  of  a  similar  kind,  can  have  no  effect  whatever, 
for  any  purpose,  upon  the  ultimate  dispositii)n  of  matters  of  this  kind.  .  .  .  The 
question  of  nuisance  can  conclusively  be  decided,  for  all  legal  uses,  by  the  established 
courts  of  law  or  equity  alone,  and  the  resolutions  of  ofliccrs,  or  of  boards  organized  by 
force  of  municipal  charters,  cannot,  to  any  degree,  control  such  decision." 

2*  "If  tlie  decisions  of  these  boards  were  final  and  conclusive,  even  after  a  hear- 
ing, the  citizen  would  in  many  cases,  hold  his  property  subject  to  I  lie  judj^quonts  of  men 
holding  ei:)hemeral  positions  in  municipal  bodies  and  boards  of  health,  frc(iuontIy 
uneducated  and  generally  unfitted  to  discharge  grave  judicial  functions.  Boards  of 
health  under  the  acts  referred  to  cannot,  as  to  any  existing  state  of  facts,  by  their 
determination  make  that  a  nuisance  which  is  not  in  fact  a  nuisance.  .  .  .  It  is  the  actual 
existence  of  a  nuisance  which  gives  them  jnrisdirtion  to  act."  People  t'.  Board  of 
Health,  142  N.  Y.  1,  supra.  Cf.  North  .American  Cold  Storage  Co.  11.  Chicago,  211 
U.  S.  306,  supra.  '"  97  Mass.  221  (1867). 

'1  Young  V.  Flower,  22  N.  Y.  Supp.  332  (1893).    But  the  declaration  was  qualified  by 


ADMINISTRATIVE  EXERCISE  OF  THE  POLICE  POWER.     341 

Where  an  owner  has  refused  to  avail  himself  of  an  opportunity  to 
present  before  the  administrative  board  his  objections  to  their  con- 
templated action,  he  may  find  himself  subsequently  precluded  from 
questioning  the  reasonableness  of  the  action  taken.  In  Metropolitan 
Board  of  Health  v.  Heister  ^^  suits  by  the  board  to  recover  penalties 
for  the  violation  of  their  orders  were  joined  with  bills  by  the  owner 
to  restrain  their  enforcement.  The  prehminary  order  to  desist  from 
slaughtering  was  made  without  notice;  but  the  board  directed  that 
it  should  not  be  executed  until  notice  served  and  an  opportunity  to 
be  heard.  The  owner  declined  to  present  his  case  before  the  board; 
and  the  court  holds,  without  citation  of  authority,  that  "he  cannot 
now  complain  that  their  judgment  upon  the  facts  is  held  to  be  con- 
clusive against  him."  ^^ 

Judicial  review  in  the  particular  instance  is  obviously  unnecessary 
when  the  thing  prohibited  falls  within  the  class  of  prima  facie  nui- 
sances or  nuisances  per  se,^'^  or  when  the  question  of  the  rightfulness 
of  the  administrative  determination  is  already  res  adjudicata  be- 
tween the  parties.^^ 

There  are  indications  that  an  administrative  determination  sanc- 
tioning an  act  will  receive  greater  judicial  respect  than  a  finding  of 
condemnation.^^    But  no  such  doctrine  prevails  as  a  general  princi- 

the  assertion  that  the  emergency  must  actually  exist,  of  which  the  officer  is  not  the  sole 
judge,  and  that  the  act  done  must  be  fairly  and  reasonably  appropriate  for  the  emer- 
gency that  has  arisen. 

In  another  bill  to  enjoin  the  enforcement  of  a  quarantine  regulation,  where  the  court 
found  conflicting  evidence  as  to  the  presence  of  the  bubonic  plague,  it  declared  that 
although  it  was  of  the  opinion  that  the  plague  did  not  exist  in  San  Francisco,  it  felt 
that  where  there  was  the  slightest  doubt,  the  decision  of  the  board  should  be  sustained. 
Jew  Ho  V.  Williamson,  103  Fed.  10  (1900). 

In  sustaining  an  ordinance  prohibiting  further  burial  in  cemeteries  within  the  city 
limits,  Mr.  Justice  Flolmes  observed  that  the  legislation  should  not  be  overthrown 
merely  because  the  opinion  of  the  court  as  to  the  realityof  the  danger  from  the  prohibited 
act  differs  from  that  of  those  who  passed  the  ordinance.  Laurel  Hill  Cemetery  v.  Saa 
Francisco,  216  U.  S.  358  (1910). 

32  37  N.  Y.  661  (186S). 

33  The  authority  of  the  case  is  weakened  by  the  fact  that  the  court  below,  though  it 
found  for  the  owner,  had  determined  as  a  fact  that  the  business  of  slaughtering  within 
the  city  was  dangerous  to  health.  The  refusal  to  litigate  the  question  before  the  board 
was  based  on  the  contention  of  their  want  of  power  over  the  subject  matter. 

3*  St.  Louis  V.  Stern,  supra,  p.  339. 

35  Wheeler  et  al.  v.  City  of  Aberdeen  et  al.,  87  Pac.  1061  (Wash.  1906). 

3s  White  V.  Kenney,  157  Mass.  12  (1892).  In  dismissing  a  bill  to  enjoin  the  erection 
of  a  stable  for  which  a  license  to  erect  had  been  granted  after  a  hearing  by  the  board 
of  health,  the  court  excluded  evidence  as  to  the  probable  effect  of  the  erection,  saj-ing 


342  HARVARD  LAW  REVIEW. 

pie.  In  Garrett  v.  State  ^^  it  is  held  that  a  board  of  health  has  no 
authority  to  license  the  manufacture  of  fertilizers  in  such  a  way  as 
to  create  what  the  court  deems  a  public  nuisance;  and  in  Pennsyl- 
vania R.  R.  Co.  V.  Angel  ^®  the  company  was  restrained  from  con- 
ducting what  the  court  declared  to  be  a  nuisance,  although  this  use 
of  its  property  was  authorized  by  the  legislature  and  was  necessary 
to  the  conduct  of  its  business.^^ 

The  abatement  of  a  nuisance  is  often  no  more  of  a  deprivation  to 
the  owner  than  is  its  continuance  to  his  neighbors.  There  seems  no 
good  reason  why  they  should  be  denied  the  judicial  hearing  accorded 
to  him.  But  a  hcense  would  properly  be  a  bar  to  a  criminal  prose- 
cution for  conducting  the  alleged  nuisance;  and  it  seems  that  after 
express  permission,  the  alleged  nuisance  can  be  abated  only  by  judi- 
cial proceedings.'*^ 

Even  where  the  court  agrees  with  the  administration  that  a  nui- 
sance exists,  they  exercise  the  right  to  decide  whether  the  abate- 
ment ordered  or  undertaken  is  proper  and  necessary.'*^  Where  a  court 
agreed  with  the  board  that  a  building  condemned  was  unfit  for  habi- 
tation, it  decHned  to  sanction  the  demoHtion  ordered,  in  the  absence 
of  evidence  that  it  could  be  made  fit  for  habitation,  and,  even  if 
that  were  estabhshed,  unless  it  should  appear  that  health  was  en- 
dangered by  the  existence  and  not  merely  the  use  of  the  building.''- 
And  it  has  been  held  that  a  jury  may  on  appeal  from  an  order  of  a 
board  of  health  prohibiting  slaughtering  on  certain  premises,  permit 
the  business  to  be  carried  on  under  such  restrictions  that  the  prem- 
ises will  be  at  all  times  kept  neat  and  clean,  where  it  appears  that 
this  can  be  done.'*^ 

that  the  statute  gave  the  determination  of  the  question  to  the  board  of  health,  and 
imi)Iied  that  the  courts  could  not  restrain  any  erection  authorized  by  them. 

"  49  N.  J.  L.  94  (i886). 

'*.  41  N.  J.  Eq.  316  (1886).  This  is  obviously  the  proper  rule  where  conditions  have 
altered  since  the  license  was  granted.  Fcrliliziiig  Co.  v.  Hyde  Park,  qj  U.  S.  659  (1S7S). 
If  a  city  itself  maintains  what  the  courts  decide  to  be  a  nuisance,  it  may  be  enjoined, 
Shreck  v.  Village  of  Coeur  d'Alcne,  87  Pac.  looi  (Idaho,  1906);  or  held  responsible  in 
damages,  Murray  v.  City  of  Butte,  35  Mont.  161  (1007). 

'"  This  position  is  also  discussed  at  length  in  Cogswell  v.  New  York,  etc.  R.  R.  Co., 
103  N.  Y.  10  (1886). 

"  Everett  v.  Marquette,  53  Mich.  450  (1884). 

"  Weil  i;.  Record,  24  N.  J.  Kq.  169  (1873);  Raljcock  1;.  BulTalo,  56  N.  Y.  26S  (1874) 
(injunction  issued  against  filling  up  a  canal,  where  nuisance  could  be  abated  by  cleaning 
it  out). 

*^  Health  Department  v.  Dassori,  81  N.  Y.  St.  Reporter  (47  N.  Y.  Supp.)  641  (1897). 

**  Sawyer  v.  btatc  Board  of  Health,  125  Mass.  182  (1878). 


ADMINISTRATIVE  EXERCISE  OF  THE  POLICE  POWER.     343 

The  same  doctrine  prevails  as  to  other  exercises  of  the  police 
power  than  the  abatement  of  nuisances.  The  existence  of  condi- 
tions to  be  remedied  is  not  in  itself  a  justification  for  the  action  taken 
or  ordered.  In  Jew  Ho  v.  Williamson,'"  where  the  court  conceded 
the  presence  of  the  plague,  it  examined  the  provisions  of  the  quar- 
antine regulations,  and  enjoined  them  as  unreasonable  and  beyond 
the  necessities  of  the  situation.'*''  Similarly  in  the  Trinity  Church 
case,'*®  where  the  statute  directed  the  installation  of  water  service  in 
tenement  houses,  vesting  in  the  administration  discretion  to  deter- 
mine the  extent  of  alteration,  the  court  in  its  discussion  laid  down 
the  boundaries  within  which  the  discretion  might  be  exercised. 
The  amount  of  expenditure  required  must  be  reasonable,  and  the 
improvement  itself  reasonable,  considered  with  reference  to  the  ob- 
ject to  be  attained,  —  of  which  the  courts  must  within  the  proper 
limits  be  the  judges. 

The  opinion  says  also  that  no  punishment  or  penalties  could  be 
enforced  against  the  defendant  without  a  trial  in  which  he  could 
show  that  he  did  not  violate  the  statute  or  the  order  of  the  board, 
or  that  his  house  was  not  a  tenement  house  within  the  provisions  of 
the  act.  It  would  seem  that  both  might  also  be  shown  in  the  suit 
to  recover  the  expense  of  making  the  improvement;  for  the  former 
would  go  to  the  question  of  reasonableness,  and  the  latter  to  the 
jurisdiction  of  the  board. 

In  considering  the  exercise  of  judicial  review  we  must  distinguish 
between  the  power  merely  to  annul,  and  the  capacity  to  amend  or 
revise.  Where  there  is  involved  the  validity  of  a  regulation  gen- 
eral in  scope,  whether  the  question  arise  in  a  suit  for  a  penalty  or 
for  the  expense  of  administrative  enforcement,  or  in  a  bill  to  enforce 
compliance  or  to  restrain  execution,  the  court  in  disapproving  of  the 
regulation  or  of  one  of  its  separable  provisions,  must  hmit  itself  to 
the  declaration  that  it  is  null.    It  cannot  make  a  new  regulation. 


^  Supra,  p.  341. 

^5  Not  over  nine  persons  were  supposed  to  have  died  from  the  disease  and  no  living 
persons  were  known  to  have  contracted  it.  Yet  the  regulations  isolated  twelve  blocks 
containing  twelve  thousand  inhabitants,  permitting  free  intercourse  between  all  per- 
sons within  the  area,  but  forbidding  all  ingress  or  egress.  Such  regulations,  thought  the 
court,  would  tend  to  spread  rather  than  to  restrict  the  disease.  A  Chinese  grocer 
complained  because  his  trade  was  interfered  with.  An  additional  reason  for  granting 
the  injunction  was  found  in  the  fact  that  the  regulations  appeared  to  be  enforced  only 
against  the  Chinese. 

^s  Supra,  p.  334- 


344  HARVARD  LAW  REVIEW. 

It  is  subject  to  the  same  incapacity  in  all  suits  for  a  penalty,  whether 
the  order  be  general  or  special.  Where,  however,  the  order  is  special, 
relating  only  to  an  individual  case,  whether  based  on  circumstances 
pecuHar  to  that  case,  or  on  the  contention  that  it  falls  within  some 
more  general  ruling,  the  court  may  enjoin  or  enforce  it,  either  in 
whole  or  in  part.  If  the  suit  is  for  the  expense  of  administrative 
enforcement,  the  claim  may  be  disallowed  in  whole  or  in  part. 

An  administrative  order  may  be  declared  invalid  either  because 
the  court  deems  it  improper  to  vest  so  wide  a  discretion  in  an  ad- 
ministrative body,^^  or  because  the  action  taken  transcends  the 
delegation. ^^  Nor  will  it  necessarily  save  an  administrative  regula- 
tion to  establish  that  the  statutory  warrant  is  manifest  and  that  the 
power  delegated  is  not  legislative.  For  the  courts  maintain  a  firm 
control  over  the  power  even  of  the  legislature  to  interfere  with  lib- 
erty and  property  under  the  guise  of  the  poHce  power.  IMany 
decisions,  therefore,  which  declare  invalid  an  administrative  reg- 
ulation or  order,  proceed  upon  grounds  equally  apphcable  to  the 
same  provisions  contained  in  legislative  enactments.^^ 

The  ground  of  invalidity  usually  alleged  is  that  the  order  is  un- 
reasonable. This  may  mean  either  that  it  would  be  an  unwarranted 
interference  by  whomever  exercised,  or  that  the  legislature  did  not 
mean  to  delegate  authority  to  exercise  power  to  this  extent.  The 
courts  always  assume  that  the  legislature  does  not  mean  to  dele- 
gate to  an  administrative  body  the  power  to  do  anything  which  in 
the  opinion  of  the  court  is  unreasonable.  And  they  are  more  ready 
to  predicate  unreasonableness  of  the  action  of  administrative  bodies 
than  of  that  of  the  legislature.''" 

"  State  ex  rcl.  Adams  v.  Burdge  el  ah.,  95  Wis.  390  (1897).  Here  it  was  said  that  the 
provisions  of  the  statute  import  and  include  an  absohite  delegation  of  the  legislative 
power  over  the  entire  subject  involved,  and  that  the  action  of  the  board  was  legisla- 
tive and  not  administrative. 

•"  Philadelphia  v.  Provident,  etc.  Trust  Co.,  132  Pa.  St.  224  (iSqo);  Wrcford  v. 
People,  14  Mich.  41  (1865). 

"  State  V.  Speyer,  67  Vt.  502  (1895);    Ex  parte  O'Leary,  65  Miss.  80  (1887). 

*"  This  is  best  illustrated  by  comparing  the  attitude  of  courts  towards  provisions  in 
statutes  with  that  towarrls  similar  i)rovisions  in  administratixe  regulations,  reciuiriug 
compulsory  vaccination  or  excluding  unvaccinated  i)ui)ils  from  the  public  schools. 
The  former  requirement  is  sustained  in  statutes,  Jacobson  v.  Massachusetts,  107  U.  S. 
II  (1904),  anfl  regulations  passed  by  virtue  of  explicit  statutory  authority,  Morris  i'. 
Columbus,  102  Ga.  792  (1897);  the  latter,  in  statutes,  .\bcol  r.  Clark,  84  Cal.  226  (1890), 
and  regulations  under  similar  specific  statutory  dclogation,  Hissell  v.  Davison,  65  Conn. 
183  (1894).    In  this  case  the  court  declined  to  luiUl  tiic  power  conditioned  upon  the 


ADMINISTRATIVE  EXERCISE  OF  THE  POLICE  POWER.     345 

An  examination  of  the  cases  will  demonstrate  the  impossibility 
of  ascertaining  the  criteria  of  reasonableness.  Of  reasonableness  as 
a  test,  Mr.  Justice  Hohnes  has  observed:  "It  may  be  said  that 
the  difference  is  only  one  of  degree;  most  differences  are  when 
nicely  analyzed.  At  any  rate,  difference  of  degree  is  one  of  the  dis- 
tinctions by  which  the  right  of  the  legislature  to  exercise  police 
power  is  determined.  Some  small  hmitations  of  previously  existing 
rights  incident  to  property  may  be  imposed  for  the  sake  of  prevent- 
ing a  manifest  evil;  larger  ones  could  not  be  except  by  the  exercise 
of  the  right  of  eminent  domain."  '^^ 

Though  it  is  often  said  that  the  state  in  the  exercise  of  the  police 
power  does  not  "take"  property,  but  merely  "  regulates  its  use,"  ^^ 
the  distinction  seems  somewhat  refined.  There  would  seem  to  be  in 
all  these  "regulatings"  which  involve  the  payment  of  money  or  re- 
striction of  action,  a  deprivation  either  of  liberty  or  property.  The 
problem  is  to  discover  whether  it  may  be  justified  as  a  proper  exer- 
cise of  the  police  power.  This  the  courts  must  solve  without  the 
aid  of  definitions  in  any  constitution.  They  have  themselves  devel- 
oped the  doctrine  of  the  police  power  as  an  implied  qualification  or 
limitation  of  the  Due  Process  clauses  of  our  various  constitutions, 
and  are  free  to  control  its  application  as  they  will. 

The  difficulty  of  securing  an  exact  definition  of  the  power  may  be 
appreciated,  if  not  solved,  by  referring  to  a  recent  utterance  from 
the  Supreme  Court: 

"All  rights  tend  to  declare  themselves  absolute  to  their  logical  ex- 
treme. Yet  all  in  fact  are  limited  by  the  neighborhood  of  principles  of 
policy  which  are  other  than  those  on  which  the  particular  right  is  founded, 

actual  existence  of  an  epidemic  or  on  reasonable  apprehension  thereof,  saying  that  the 
statute  had  imposed  no  such  condition,  and  that  there  was  no  reason  \vh\-  it  should  be 
implied. 

But  where  the  delegation  in  the  statute  is  couched  in  such  general  terms  as  "to 
take  action  in  the  interest  of  the  health  and  lives  of  the  community,"  the  adminis- 
trative regulations,  though  usually  sustained  in  the  presence  of  epidemic.  Duffield  v. 
School  District,  162  Pa.  St.  476  (1894),  Blue  v.  Beach,  155  Ind.  121  (1900),  arc  in  the 
absence  of  actual  or  threatened  epidemic  quite  generally  declared  invalid  because  un- 
reasonable. Matthews  v.  Board  of  Education,  127  IMich.  531  (1901);  State  ex  rcl. 
Adams  v.  Burdge  et  als.,  95  Wis.  390  (1897);  Potts  v.  Breen,  167  111.  67  (1897). 

^^^lere  the  decision  is  not  grounded  on  unreasonableness,  the  courts  usually  assert 
that  the  general  power  delegated  should  be  construed  as  meaning  to  authorize  action 
only  in  the  presence  of  immediate  danger. 

51  Rideout  v.  Knox,  148  Mass.  368  (1889). 

52  Health  Department  v.  Trinity  Church,  supra,  p.  334. 


346  HARVARD  LAW  REVIEW. 

and  which  become  strong  enough  to  hold  their  own  when  a  certain  point 
is  reached.  The  Hmits  set  to  property  by  other  public  interests  present 
themselves  as  a  branch  of  what  is  called  the  poUce  power  of  the  state. 
The  boundary  at  which  the  conflicting  interests  balance  cannot  be  deter- 
mined by  any  general  formula  in  advance,  but  points  along  the  Hne,  or 
helping  to  establish  it,  are  fixed  by  decisions  that  this  or  that  concrete 
case  falls  on  the  nearer  or  farther  side.  ...  It  constantly  is  necessary 
to  reconcile  and  adjust  different  constitutional  principles,  each  of  which 
would  be  entitled  to  possession  of  the  disputed  ground  but  for  the  presence 
of  the  others."  ^ 

In  another  recent  opinion  the  same  jurist  observes: 

"And  yet  again  the  extent  to  which  legislation  may  modify  and  re- 
strict the  uses  of  property  consistently  with  the  constitution  is  not  a 
question  for  pure  abstract  theory  alone.  Tradition  and  the  habits  of  a 
community  count  for  more  than  logic."  ^ 

"In  the  long  run,"  says  Professor  Seligman,  "the  economic  in- 
terests of  a  community  must  prevail;  for  law  is  nothing  but  the 
crystallization  of  economic  and  social  imperatives."  '•''" 

We  shall  be  aided  then  more  by  the  method  of  enumeration  than  of 
definition.  Whether  or  not  the  "Supreme  Court  follows  the  elbction 
returns,"  as  one  of  our  sagacious  humorists  avers,  it  is  beyond  dis- 
pute that  popular  feeling  on  matters  relating  to  the  conflicting 
interests  of  the  individual  and  the  group  to  which  he  belongs, 
exerts  a  potent  influence  upon  the  chosen  arbiters  of  constitu- 
tional questions.  Any  attempt,  therefore,  to  forecast  the  decisions 
of  the  future  limiting  the  extent  of  interference  to  be  pennitted  as 
an  exercise  of  the  police  power,  must  recognize  that  the  courts  will 
be  governed  more  by  the  currents  of  public  opinion  than  by  the  store 
of  ancient  precedents. 

Thomas  Rccd  Powell. 
Burlington,  Vt. 

[To  be  continued.] 

"  Mr.  Justice  Holmes,  in  Hudson  County  Water  Co.  v.  McCarter,  209  U.  S.  349 
(1908). 
"  Laurel  Iliil  Cemetery  v.  San  Francisco,  216  U.  S.  358  (1910). 
»  25  Pol.  Sci.  Quar.,  217. 


ADMINISTRATIVE   EXERCISE   OF   THE 
POLICE    POWER. 

[Concluded.] 

III. 

Judicial  Review  in  Actions  for  Damages. 

"\^7"HENEVER  administrative  action  in  the  exercise  of  the 
poHce  power  takes  the  form  of  the  issue  of  an  order  to  an 
individual,  he  may  by  prompt  petition  to  the  courts  secure  a 
judicial  ruhng  as  to  the  validity  of  the  administrative  command. 
The  same  possibihty  of  rehef  is  open  to  him  when  he  complains 
that  the  administration  denies  him  permission  to  take  some  action 
for  which  its  consent  is  necessary  under  the  law.  But  other  methods 
of  administrative  procedure  may  be  so  summary  that  an  action 
for  damages  affords  the  only  possible  means  of  rehef.  And  wherever 
loss  has  actually  accrued  through  administrative  action,  money 
compensation  is  essential  to  complete  redress  for  any  official  wrong, 

A.     Liability  of  Public  Corporations. 

(i)  The  State.  —  No  action  can  be  maintained  against  the  state 
without  its  consent.  Even  where  a  statute  creates  a  court  of  claims 
with  jurisdiction  over  demands  against  the  state,  it  is  held  that 
the  state  is  not  made  a  debtor  by  the  unauthorized  acts  of  offipers 
in  destroying  what  is  not  in  fact  a  nuisance.^  In  a  case  where  the 
court  dechned  to  interfere  with  commissioners  in  appraising  the 
value  of  diseased  cattle  killed,  to  determine  the  compensation  due 
from  the  state  under  the  statute,  it  was  declared  that  if  healthy 
cattle  were  killed,  the  state  was  not  responsible.^ 

(2)  Municipalities.  —  INIunicipal  corporations  are  not  immune 
from  the  process  of  the  courts;  but,  by  the  great  weight  of  author- 
ity, no  action  lies  against  a  municipahty  for  the  wrongful  acts  of 

1  Houston  V.  The  State,  98  Wis.  481  (1898). 

2  Shipman  v.  State  Live  Stock  Commission,  115  Mich.  488  (1898). 


442  HARVARD  LAW  REVIEW. 

its  officers  in  executing  poKce  ordinances.^  The  decisions  are  based 
upon  the  grounds  that  the  poHce  officers,  though  chosen  by  the 
city,  are  not  servants  of  the  municipahty,  but  general  officers,^ 
and  also  that  the  city  is  exercising  the  police  power,  not  for  its 
benefit  or  interest  in  its  corporate  capacity,  but  for  the  public 
good.^  No  liabihty  can  be  enforced  for  mere  wrongful  refusal  to 
issue  a  hcense,^  or  wrongful  revocation  of  a  Hcense.^  But  in  some 
jurisdictions  municipahties  are  held  Uable  for  the  positive  tres- 
passes of  their  officers  in  enforcing  police  measures.^  Such  Habihty 
is  sometimes  imposed  directly  by  statute.  The  question  whether 
property  destroyed  was  in  fact  a  nuisance  presents  itself  for  judicial 
cognizance  also  in  suits  under  statutes  making  a  city  or  county 
Uable  for  damages  done  by  mobs.^ 

B.    Liability  of  Officers. 

(i)  Denial  of  Permission.  —  No  action  can  be  maintained  against 
an  officer  personally  for  his  failure  to  take  action  in  enforcing  the 
police  power,^°  or  for  his  refusal  to  extend  permission  to  do  some 
act  for  which  a  Hcense  is  required.  In  an  early  New  York  decision, 
where  action  was  brought  against  an  inspector-general  of  provisions 

'  Hand  v.  Philadelphia,  8  Pa.  Co.  Ct.  Rep.  213  (1890),  city  held  not  liable  for  act 
of  health  officer  in  removing  to  a  pest-house  a  person  not  in  fact  infected  with  small- 
po.x.  Plaintiff  had  already  recovered  damages  from  the  ollicer  personally;  but  the 
case  does  not  appear  to  have  been  appealed  to  a  higher  court.  Evans  v.  City  of 
Kankakee,  231  111.  223  (1907),  city  not  liable  for  negligent  fumigation  of  city  cala- 
boose by  its  officers. 

*  Bceks  V.  Dickinson  County,  131  Iowa  244  (1906);  Valentine  v.  Englewood,  76 
N.  J.  L.  509  (1908). 

•*  Boehm  &  Loeber  v.  Baltimore,  61  Md.  259  (1884);  Gilboy  v.  City  of  Detroit, 
115  Mich.  121  (1897). 

0  Butler  V.  City  of  Moberly,  131  Mo.  App.  172  (1908). 
^  Claussen  v.  City  of  Luvcrne,  103  Minn.  491  (1908). 

*  Mayor  v.  Mitchell,  79  Ga.  807  (1887).  In  Fauchoux  v.  To^vn  of  St.  Martin- 
ville,  45  So.  600  (La.  1908),  it  was  held  error  to  dismiss  action  against  town  for  de- 
struction of  plaintiff's  house  by  order  of  the  corporation  and  mayor,  because  the 
town  is  primd-facie  liable  and  has  the  burden  ta  prove  that  Uie  acts  of  its  agents  arc 
wholly  ultra  vires.  Cf.  Sumner  v.  Philadelphia,  Fed.  Cas.  13,  611  (1S73),  where  city 
was  held  liable  for  wrongful  detention  of  vessel  for  c|uaranline. 

"  Kly  V.  Board  of  Supervisors,  36  N.  Y.  297  (1867);  Brightman  v.  Bristol,  65  Mc. 
426  (1876). 

'"  Wliidden  v.  Cheever,  44  y\tl.  908  (N.  II.  1897),  not  liable  to  landlord  for  refusal 
to  order  small-po.\  tenant  transferred  to  a  pest-house. 


ADMINISTRATIVE  EXERCISE  OF  THE  POLICE  POWER.     443 

for  condemning  certain  beef  as  unmerchantable,  Judge  Livingston 
declared  that 

"an  officer,  acting  under  a  commission  from  government,  who  is  en- 
joined by  law  to  the  performance  of  certain  things,  if  in  his  judgment 
or  opinion  the  requisites  therein  mentioned  have  been  complied  with, 
...  is  not  answerable  to  a  party,  who  may  conceive  himself  aggrieved 
for  an  omission  arising  from  mistake  or  mere  want  of  skill."  ^^ 

And  a  half  century  later  the  California  court,  in  holding  that  the 
power  of  the  board  of  pilot  commissioners  was  quasi-judicial  and 
that  they  were  not  civilly  answerable  for  denying  a  license,  an- 
nounced that  "whenever,  from  the  necessit}^  of  the  case,  the  law 
is  obliged  to  trust  to  the  sound  judgment  and  discretion  of  an 
officer,  public  policy  demands  that  he  be  protected  from  the  con- 
sequences of  an  erroneous  judgment."  ^^  But  an  officer  may  be 
held  responsible  for  libel  or  slander  in  connection  with  his  dis- 
approval of  goods  inspected.^^ 

Actions  for  damages,  however,  are  usually  based  not  on  non-feas- 
ance, but  on  some  positive  action  which  results  in  actual  interference 
with  person  or  property.  But  the  personal  liability  of  those  who 
exercise  governmental  authority  does  not  follow  of  necessity  from 
the  fact  that  in  other  proceedings  their  action  might  be  modified  or 
annulled  by  the  courts.  A  legislator  may  vote  for  an  unconstitu- 
tional statute,  an  inferior  judicial  officer  may  issue  a  decree  which 
a  higher  court  will  later  reverse,  and  yet  neither  be  responsible  in 
damages  to  individuals  aggrieved. 

(2)  General  Regulations.  —  The  issue  of  general  regulations  by 
an  administrative  body  is  so  akin  to  the  exercise  of  legislative 
power,  that  those  who  issue  the  regulation  are  not  personally 
responsible  merely  for  having  cast  their  vote.^"*  Few  would  venture 
to  exercise  the  discretion  vested,  at  the  risk  of  being  called  upon 
to  justify  their  action  in  a  thousand  suits  for  damages. 

But  the  immiunity  given  to  those  w^ho  issue  the  regulation  does 
not  leave  the  individual  without  remedy.    A  regulation  which  the 


"  Seaman  v.  Patten,  2  Caines  N.  Y.  Term  Rep.  312  (1805). 

12  Do^vner  v.  Lent,  6  Cal.  94  (1856). 

"  Hubbard  v.  AlIe>Ti,  200  Mass.  166  (1908). 

"  Jones  V.  Loving,  55  Miss.  109  (1877);  Baker  v.  State,  27  Ind.  485  (1S67),  semble. 


444  HARVARD  LAW  REVIEW. 

courts  deem  improper  furnishes  no  protection  to  inferior  officials 
who  execute  it.^"" 

(3)  Special  Orders  and  Adjudications. — Where  the  administra- 
tive order  relates  to  an  individual  instance,  the  function  performed 
is  similar  to  that  commonly  entrusted  to  the  courts.  For  every 
special  order,  whether  based  on  conditions  peculiar  to  the  indi- 
vidual instance  or  common  to  the  general  class  to  which  it  belongs, 
involves  the  determination  that  the  concrete  case  falls  within  some 
general  rule. 

Shall  the  officers  who  exercise  this  power  receive  the  immunity 
accorded  to  the  judiciary?. 

The  rule  in  favor  of  judicial  officers  is  deemed  necessary  to  pro- 
tect them  in  the  impartial  performance  of  their  duties,  that  they 
may  render  the  decision  they  deem  just  and  necessary,  without 
fear  of  the  consequences.  It  is  urged  that  the  same  considerations 
apply  to  administrative  officers  in  the  exercise  of  what  are  often 
termed  quasi-judicial  functions. 

In  dismissing  a  suit  against  a  meat  inspector  for  the  destruction 
of  fish  which  the  plaintiff  alleged  were  not  in  fact  unwholesome, 
the  court  said  that  the 

"powers  conferred  are  plainly  and  clearly  judicial.  .  .  .  The  officer 
exercising  such  a  power  is  within  the  protection  of  that  principle,  that 
a  judicial  officer  is  not  responsible  in  an  action  for  damages  to  an}-  one 
for  any  judgment  he  may  render,  however  erroneously,  negligcnlly, 
ignorantly,  corruptly,  or  maliciously  he  may  act  in  rendering  it,  if  he 
act  within  his  jurisdiction."  ^^ 

In  a  similar  case  against  an  officer  for  killing  a  horse  which  the 
lower  court  had  found  was  not  in  fact  afflicted  with  glanders,  Judge 
Devens  declared  that  the  decision  of  the  officer  should  nevertheless 
"be  held  conclusive,  in  order  that  the  community  may  be  pro- 
tected, and  that  those  entrusted  with  the  execution  of  the  law  may 
safely  assume  the  responsibilities  imposed  upon  them."  ^'^ 

But  this  was  in  a  dissenting  opinion.  And  the  former  case  has 
been  overruled.^^    So  that  the  broad  doctrine  enunciated  is  not  law. 

"•  Lit  lie  V.  Harrcmc,  3  Cranch  (U.  S.)  170  (1804);  Tracy  v.  Swartwout,  10  Pet. 
(U.  S.)  80  (1836). 

»»  Filth  V.  Koi-piK'l,  72  Wis.  280  (18S8). 

"  Miller  v.  llorlon,  152  Mass.  540  (i8gi),  infra,  p.  448. 

"  Lowe  V.  Conroy,  120  Wis.  151  (1904). 


ADMINISTRATIVE  EXERCISE  OF  THE  POLICE  POWER.     445 

In  considering  the  liability  of  officers  for  the  execution  of  their 
own  decrees,  a  distinction  is  to  be  noted  between  two  methods  of 
administrative  enforcement.  It  may  be  direct  and  immediate, 
without  notice  to  persons  affected,  or  else  conditioned  on  non- 
compliance by  the  individual  with  some  order  specifically  brought 
to  his  attention.  In  the  former  case,  an  action  for  damages  affords 
the  only  access  to  the  courts;  in  the  latter,  upon  receipt  of  the 
order,  a  bill  may  be  filed  to  restrain  its  execution.  A  denial  of  the 
injunction  after  a  hearing  settles  the  question  of  the  characteristics 
of  the  property,  and  the  doctrine  of  res  adjudicata  prevents  the 
owner  from  offering  evidence  as  to  its  condition  in  an  action  for 
damages  against  the  officer. ^^ 

Where  the  owner  neglects  either  to  comply  with  the  order  or 
to  file  a  bill  to  enjoin  its  enforcement,  there  are  cases  which  on 
their  facts  sustain  the  proposition  that  in  a  subsequent  action  for 
damages,  he  cannot  question  the  correctness  of  the  administrative 
finding  of  fact  on  which  the  order  and  its  execution  are  based.  In 
Van  Wormer  v.  The  Mayor  ^°  the  board  of  health  tore  down  the 
house  of  the  plaintiff  after  he  had  disregarded  their  order  of  removal. 
In  the  subsequent  suit  for  damages  it  was  held  that  evidence  to 
show  that  there  was  in  fact  no  nuisance  was  properly  rejected,  as 
that  point  "had  been  adjudicated  by  the  proper  tribunal,  and  was 
not  in  issue  at  the  circuit."  In  Raymond  v.  Fish  -^  the  owner  failed 
to  remove  certain  brush  as  ordered,  and  it  was  destroyed  by  the 
board.  Judgment  was  given  in  their  favor,  although  the  trial  court 
had  found  expressly  that  the  property  destroyed  was  not  the 
origin  or  a  producing  cause  of  disease. 

There  is  thus  authority  which  tends  to  establish  that  where 
administrative  execution  is  merely  a  substitute  for  action  required 
of  the  owner,  a  suit  for  damages  against  those  who  issue  the  order 
is  not  the  proper  proceeding  in  which  to  question  the  existence  of 
the  facts  on  which  it  is  based.  These  decisions  were  based  on 
broader  grounds  than  that  the  plaintiff  was  barred  by  his  faihire 
to  seek  judicial  relief  in  the  interim  between  the  receipt  of  the 
order  and  the  invasion  of  his  property."     But  we  may  question 

"  Wheeler  et  al.  v.  City  of  Aberdeen  et  al.,  87  Pac.  1061  (Wash.  1906).  But  it  was 
held  error  to  dismiss  the  action,  since  it  was  open  to  the  plaintiffs  to  show  that  the 
defendants  had  acted  wantonly  and  beyond  the  necessities  of  the  situation. 

20  15  Wend.  (N.  Y.)  262  (1836). 

21  SI  Conn.  80  (1883).  ^  See  infra,  p.  451. 


44^  HARVARD  LAW  REVIEW. 

the  broader  principles  enunciated,  and  yet  sustain  the  decrees  on 
the  doctrine  suggested.  For  it  would  seem  a  salutary  rule  wliich 
requires  the  owner  to  seek  the  aid  of  the  courts  before  the  mischief 
is  done,  and  while  the  property  is  still  in  existence  as  a  source  of 
evidence,  or  else  to  be  bound  by  the  administrative  determination. 
This  affords  to  the  officer  the  protection  essential  to  efficient  exe- 
cution of  the  law,  and  withholds  judicial  rehef  from  the  owner 
only  by  reason  of  his  prior  laches. 

Some  have  sought  to  sustain  Raymond  v.  Fish  and  Van  Wormer 
V.  The  Mayor,  not  on  the  ground  that  there  was  opportunity  for 
a  judicial  hearing  at  some  prior  time,  but  on  the  theory  that  the 
owner's  rights  were  adequately  protected  because  he  had  been 
accorded  a  hearing  before  the  administration.-^  In  Van  Wormer 
V.  The  Mayor  the  court  seems  to  assume  that  under  the  statute  a 
hearing  was  necessary,  and  finds  that  the  statute  had  been  sub- 
stantially though  not  technically  complied  with.  But  in  Raymond 
V.  Fish  no  hearing  seems  to  be  necessary  from  such  portions  of  the 
statute  as  are  quoted  in  the  opinion;  and  no  mention  of  such  neces- 
sity appears  in  the  discussion  of  the  court.  And  from  the  statement 
of  facts  it  appeared  that  no  hearing  had  been  accorded  as  to  the 
issue  of  the  particular  order  of  whose  enforcement  the  plaintiff 
complained.-^  But  the  granting  of  a  hearing  before  the  issue  of 
the  order  would  seem  to  be  immaterial,  if  the  basis  for  denying 
judicial  review  in  the  action  for  damages  is  the  prior  opportunity 
to  be  heard  in  judicial  proceedings  before  the  order  is  carried  into 
effect. 

(4)  Administrative  Execution.  —  Such  opportunity  is  of  course 
foreclosed  by  execution  not  preceded  by  notice  to  the  owner  to 
take  action  himself.  The  question  in  such  cases  is  squarely  pre- 
sented: is  a  judicial  hearing  necessary  ?  No  such  requirement 
exists  in  respect  to  the  accuracy  of  administrative  ascertainments 
of  value  for  purposes  of  taxation.  Assessors  are  accorded  the  same 
immunity  enjoyed  by  judicial  officers.  But  in  consiilering  the 
analogy  between  judicial  and  administrative  action,  it  is  to  be  noted 
that  in  judicial  proceedings  due  process  inexorably  requires  notice 
and  an  opportunity  to  be  heard.  These  are  also  prerequisite  to 
the  findings  of  assessors.     But  in  the  exercise  of  the  police  power, 

^  See  infra,  p.  451  ct  seq. 
^  See  in/ra,  p.  452. 


ADMINISTRATIVE  EXERCISE  OF  THE  POLICE  POWER.     447 

notice  and  a  hearing  before  the  administration  are  often  not  essen- 
tial.    In  such  instances  the  analogy  fails. 

(a)  In  absence  of  opportunity  to  be  heard.  —  The  law  is  clear,  there- 
fore, that  when  a  hearing  has  been  impossible  before  either  the 
administration  or  the  courts,  the  officer  who  has  destroyed  property 
must  establish  in  the  suit  for  damages  that  it  possessed  the  char- 
acteristics which  he  claims  to  have  found,  and  that  its  condition 
justified  his  action.-^ 

In  Lowe  v.  Conroy^®  the  Wisconsin  court  conceded  the  general 
principle  announced  previously  in  Fath  v.  Koeppel,-^  but  added: 

"The  facts  show  that  the  respondent's  private  property  rights  have 
been  unjustly  invaded  and  that  he  is  remediless  in  law  unless  those 
who  did  the  trespass  are  liable.  Under  such  circumstances  the  rule 
applies  that  even  quasi- judicial  ofhcers  may  be  subject  to  a  personal 
liabiUty,  since  the  discretion  in  which  such  officers  are  protected  must 
be  limited  to  the  line  where  their  acts  invade  the  private  property  rights 
of  another,  for  which  the  law  affords  no  redress  other  than  an  action 
against  the  one  actually  committing  the  trespass." 

In  Pearson  v.  Zehr  ^^  the  court  received  the  evidence  of  farmers 
and  others  not  veterinarians,  and  sustained  a  judgment  against 
members  of  the  Board  of  Live  Stock  Commissioners  for  killing 
horses  which  the  jury  found  did  not  in  fact  have  glanders,  saying 
that  unless  the  fact  of  glanders  exists,  the  slaughter  is  done  without 
authority  of  law,  although  the  board  acted  in  good  faith,  had 
reasonable  grounds  for  their  belief,  and  had  made  an  honest  and 
careful  investigation. 

Thus  it  would  seem  that  the  opinions  of  experts  may  be  out- 
weighed by  the  conclusions  of  the  untrained,  and  that  those  who 
endeavor  honestly  and  carefully  to  perform  the  duties  entrusted 
to  them  by  law  to  protect  the  community  against  danger  may  be 
subject  to  the  findings  of  a  jury  with  respect  to  matters  frequently 
arousing  popular  passion  and  prejudice  hostile  to  the  enforcement 
of  the  law.-^ 

25  North  American  Cold  Storage  Co.  v.  Chicago,  infra,  p.  449;  Miller  v.  Horton, 
infra,  p.  448. 

26  120  Wis.  151  (1904).  "  Supra,  p.  444-  ^*  138  HI-  48  (1891). 

29  The  hardships  of  such  a  rule  and  the  consequent  danger  of  lax  and  ineffective 
administration  are  mitigated  in  manj'  jurisdictions  by  statutes  placing  on  the  public 
treasury  the  burden  of  the  expense,  in  some  instances  even  where  the  property  de- 
stroyed is  admittedly  noxious. 


448  HARVARD  LAW  REVIEW. 

The  cases  are  based  on  two  grounds:  the  limited  jurisdiction 
vested  in  the  administration;  and  the  impossibility  of  interfering 
with  property  unless  the  owner  has  somehow,  somewhere,  the 
opportunity  to  offer  evidence  as  to  its  condition. 

The  rule  is  universal  that  officers  are  personally  hable  for  acts 
in  excess  of  jurisdiction.  The  difficulty  lies  in  ascertaining  the 
jurisdictionary  fact:  fish,  or  unwholesome  fish;  horses,  or  horses 
with  glanders.  The  cases  have  arisen  in  the  absence  of  express 
statutory  provision  that  the  finding  of  the  board  should  be  conclu- 
sive. In  Pearson  v.  Zehr  the  court  declared  that  unless  the  fact  of 
glanders  exists,  the  slaughter  is  done  without  authority  of  law. 
In  Miller  v.  Horton^°  the  majority  held  that  the  statute  gave  no 
authority  unless  the  horse  in  fact  had  glanders;  and  they  pro- 
ceeded on  the  not  unusual  assumption  that  the  fact  is  necessarily 
what  is  determined  to  be  true  in  judicial  proceedings.  The  minority, 
on  the  other  hand,  were  of  opinion  that  the  intention  of  the  legis- 
lature was  that  the  right  of  any  agent  the  commissioners  might 
employ  should  rest,  not  on  the  fact  that  the  animal  was  actually 
affected  with  glanders,  but  on  the  administrative  finding  and 
condemnation. 

This  interpretation  raises  the  question  of  constitutionality. 
The  minority  urged  that  the  legislature  might  consider  that  self- 
protection  required  the  immediate  killing  of  all  horses  which  a 
competent  board  deemed  infected,  whether  they  were  so  or  not, 
and  that  innocent  horses  killed  as  a  sacrifice  to  necessary  self- 
protection  need  not  be  paid  for.  Judge  Holmes  answered  vaguely 
enough  that  self-protection  requires  only  what  is  actually  neces- 
sary, and  not  all  that  may  reasonably  be  believed  to  be  necessary. 
But  he  added  that  on  that  point  the  court  expressed  no  opinion, 
because  in  the  actual  case,  actual  necessity  required  onK"  the 
destruction  of  infected  horses,  and  that  was  all  the  legislature 
purported  to  authorize.  His  opinion  was  indicated,  however,  by 
the  observation  that 

"had  the  statute  declared  in  i)lain  terms,  that  sucli  healthy  animals  us 
should  be  killed  by  mistake  for  diseused  t)nes  would  not  be  paid  for, 
we  should  deem  it  a  serious  question  whether  such  provision  could  be 
upheld." 

""  152  Mass.  540  (1891). 


ADMINISTRATIVE  EXERCISE  OF  THE  POLICE  POWER.     449 

Any  possible  dispute  must  be  considered  settled  since  the  decla- 
ration of  the  Supreme  Court  that  the  statutes  vesting  power  sum- 
marily to  destroy  food  without  giving  the  owner  a  chance  to  be 
heard  as  to  its  condition  can  be  sustained  only  because  the  deter- 
mination of  the  officials  and  the  action  taken  thereon  does  not 
bind  the  owner  as  to  the  quality  of  the  article  destroyed,  and  that 
it  remains  open  for  him  in  a  subsequent  suit  against  the  officials 
to  introduce  evidence  of  the  actual  condition  of  the  food.^^ 

It  may  therefore  be  taken  as  established  that  not  even  a  statu- 
tory prohibition  of  judicial  review  would  preclude  the  courts  from 
examining  the  correctness  of  administrative  findings  in  ex  parte 
proceedings,  where  condemnation  is  followed  by  immediate  and 
summary  destruction. 

But  judicial  censorship  is  applied  with  less  severity  to  determina- 
tions resulting  only  in  some  temporary  restraint  of  personal  hberty 
or  some  minor  interference  with  property.  An  officer  is  not  liable 
in  damages  for  removing  a  person  afflicted  with  leprosy  to  a  pest- 
house,  although  such  action  exceeds  the  necessities  of  the  situation 
and  would  be  enjoined.^-  It  seems  also  that  there  would  be  no 
liabiHty  for  removing  one  to  a  pest-house  where  the  s}TTiptoms 
were  not  in  fact  those  of  a  contagious  disease.  In  Brown  v.  Purdy  ^^ 
it  is  said  obiter: 

"If  there  was  any  case  for  his  judgment,  or  any  fact  of  appearance  or 
symptom  as  to  which  a  question  of  small-pox  or  not  could  arise,  his 
determination  was  final  as  to  the  legality  or  propriety  of  removal." 

And  in  two  recent  cases,  officers  who  confined  to  their  homes  and 
quarantined  persons  erroneously  assumed  to  be  afflicted  with  a 
contagious  disease  were  held  not  personally  liable  in  damages.^^ 
In  the  New  Jersey  decision  there  was  invasion  of  property  rights 
as  well  as  of  personal  liberty,  for  the  plaintiff  complained  of  fumi- 
gation as  well  as  restraint. 

In  Miller  v.  Horton  the  minority  argued  from  an  earlier  decision 
which  held  that  the  legislature  might  order  all  imported  rags  to 
be  disinfected,   not  because   all  were   infected,   but  because   the 

"  North  American  Cold  Storage  Co.  f.  Chicago,  211  U.  S.  306  (190S).  See  24 
Harv  L.  Rev.  336.  '-  Kirk  v.  Wyman,  83  S.  C.  372  (1909),  semblc. 

33  8  N.  Y.  St.  Reporter  143  (1886). 

^  Beeks  v.  Dickinson  County  el  al.,  131  Iowa  244  (1906);  Valentine  v.  Englcwood, 
76  N.  J.  L.  509  (1908),  infra,  p.  454- 

29 


450  HARVARD  LAW  REVIEW. 

danger  was  too  great  to  permit  of  discrimination,^^  that  it  could 
make  a  similar  order  with  respect  to  the  killing  of  all  horses  which 
a  respectable  board  should  deem  to  be  so  infected.  Judge  Holmes 
answered  by  suggesting  that  there  was  an  important  distinction  in 
degree  at  least,  between  regulating  the  precautions  necessary  to 
be  taken  in  keeping  property,  and  in  ordering  its  destruction. 
And  he  had  previously  observed  that  difference  of  degree  is  one 
of  the  distinctions  by  w^hich  the  right  to  exercise  police  power  is 
determined.^^ 

In  other  exercises  of  governmental  power  affecting  property,  the 
only  administrative  findings  in  ex  parte  proceedings  held  not  sub- 
ject to  review  are  those  adjudged  to  relate,  not  to  the  taking  of 
property,'  but  to  the  granting  or  denial  of  some  privilege  completely 
within  the  power  of  the  government  to  confer  or  to  withhold.^^ 
And  in  such  instances  there  is  usually  opportunity  to  question  the 
administrative  decision  in  the  courts  and  obtain  rehef  on  such 
other  grounds  as  may  be  open,  before  the  official  action  has  pro- 
duced irreparable  injury. 

(b)  After  a  hearing.  —  When  the  owner  cannot  offer  his  evidence 
before  the  administration,  he  may  offer  it  in  the  courts.  Some- 
where there  must  be  a  hearing.  Frequently  the  administration 
grants  a  hearing.  But  the  owner  who  is  dissatisfied  with  its  con- 
clusions from  the  evidence  presented  may  prefer  to  submit  the 
evidence  to  court  and  jury. 

Most  statutes  which  permit  summary  execution  without  first 
giving  the  owner  an  opportunity  to  take  action  himself,  provide 
also  that  the  administrative  decision  may  be  reached  upon  inspec- 
tion without  hearing  testimony.  For  the  necessity  which  pro- 
hibits postponement  of  execution  after  action  has  been  determined 
upon,  will  usually  forbid  the  delay  involved  in  granting  a  hearing 
before  reaching  a  decision.  Conversely,  the  statutes  which  require 
a  hearing  before  reaching  a  conclusion  usually  permit  administra- 
tive execution  only  in  default  of  action  by  the  owner.  So  that  the 
decisions  in  suits  for  damages  which  have  been  assumed  to  deny 
the  right  of  judicial  review  of  conclusions  of  fact  reached  by  an 

*^  Train  v.  Boston  Disinfecting  Co.,  144  Mass.  523  (1SS7). 
31  Ridcout  V.  Knox,  148  Mass.  368  (18S9). 

"  Buttficki  V.  Strunahan,  192  U.  S.  470  (1904);  Public  Clearing  House  v.  Coyne, 
194  U.  S.  497  (1904). 


ADMINISTRATIVE  EXERCISE  OF  THE  POLICE  POWER.    451 

administrative  body  after  a  hearing  are  instances  where  notice  to 
abate  preceded  the  abatement  of  the  administration. 

This  point,  however,  has  not  been  noted  by  the  courts;  and 
some  of  the  principles  declared  are  broad  enough  to  apply  to  admin- 
istrative decisions  executed  without  notice.  With  respect  to  ex 
parte  determinations,  the  doctrine  is  clearly  opposed  to  the  over- 
whelming weight  of  authority.  It  remains  to  be  inquired  whether 
it  obtains  with  respect  to  determinations  reached  after  a  hearing. 

Van  Wormer  v.  The  Mayor  ^^  was  not  decided  by  the  court  of 
last  resort,  and  the  opinion  cites  no  authorities.  Its  declaration 
that  in  an  action  of  trespass  evidence  to  show  there  was  in  fact 
no  nuisance  was  properly  rejected,  must  compete  with  a  dictum  of 
the  Court  of  Appeals  some  skty  years  later  to  the  effect  that  ''no 
decision  of  a  board  of  health,  eve7t  if  made  on  a  hearing,  can  conclude 
the  owner  upon  the  question  of  nuisance."  ^^ 

In  Raymond  v.  Fish'^°  the  court  propounded  this  question: 

"Does  the  statute  confer  upon  the  board  of  health  the  right  to  deter- 
mine conclusively  in  any  case  what  are  nuisances  and  sources  of  filth 
which  endanger  the  health  of  the  inhabitants,  so  that  if  they  act  in 
good  faith  and  merely  err  in  judgment,  the  statute  will  justify  the  act 
done  although  the  property  of  a  tliird  party  may  be  destroyed  ?  " 

The  affirmative  answer  is  deduced  by  the  reasoning  that  since  any 
private  citizen  may  abate  what  is  in  fact  a  nuisance  which  does 
him  harm,  if  the  statute  gives  the  officers  no  additional  protection 
it  accompHshes  nothing  by  its  enactment.  It  was  held,  therefore, 
that  the  statute  meant  to  give  the  board  power  to  decide  the 
matter  conclusively  in  the  apparent  necessities  of  the  case.'*^  But 
the  immunity  accorded  by  the  decision  was  confined  to  "seemingly 
extreme  cases,"  where  there  is  "reasonable  ground  to  believe  that 
immediate  action  is  necessary"  and  "reasonable  ground  to  believe 
the  supposed  nuisance  to  be  one  in  fact." 

38  Supra,  p.  445. 

33  Health  Department  v.  Trinity  Church,  145  N.  Y.  32  (1895).  See  24  H.\rv.  L, 
Rev.  334. 

*"  Supra,  p.  445. 

^.  "The  statute  does  not  mean  to  destroy  property  which  is  not  in  fact  a  nuisance, 
but  who  shall  decide  whether  it  is  so?  All  legal  investigations  require  time  and  cannot 
be  thought  of.  If  the  board  of  health  are  to  decide  at  their  peril,  they  will  not  decide 
at  all.  ...  It  would  seem  absolutely  necessary  to  confer  upon  some  constituted  body 
the  power  to  decide  the  matter  conclusively,  and  to  do  it  summarily,  in  order  to  accom- 
plish the  object  the  statute  had  in  view.    We  think  this  has  been  done." 


452  HARVARD  LAW  REVIEW. 

The  decision  does  not  purport  to  be  based  on  the  fact  that  a 
hearing  was  given.  The  discussion  throughout  the  opinion  is 
equally  applicable  to  summary  destruction  without  prior  hearing. 
The  positions  taken  seem  squarely  opposed  to  those  advanced  by 
the  majority  in  Miller  v.  Horton.^  The  decisions  are  to  be  dis- 
tinguished by  the  fact  that  in  Raymond  v.  Fish  the  administrative 
execution  was  preceded  by  notice,  rather  than  that  before  reach- 
ing the  determination  on  which  the  execution  was  based  a  hearing 
was  there  accorded  which  was  absent  in  Miller  v.  Horton.  For 
the  only  hearing  in  Raymond  v.  Fish  was  on  July  i6  with  respect 
to  an  order  issued  on  August  15,  and  rescinded  on  August  24. 
On  December  8  the  board  took  up  the  matter  again  and  voted  to 
require  owners  to  remove  their  brush  before  December  25.  But 
plaintiff  had  no  notice  of  this  contemplated  action  and  no  knowl- 
edge of  it  until  four  days  after  it  was  taken.  After  September  i 
the  malady  ceased  to  be  epidemic;  so  that  the  owner,  if  granted 
a  hearing  as  to  the  issue  of  the  second  order,  would  doubtless  have 
urged  other  considerations  than  those  presented  five  months  pre- 
viously. In  Miller  v.  Horton  the  plaintiff  knew  of  the  examination 
of  his  horses,  and  notified  those  who  came  to  kill  them  that  sur- 
geons employed  by  him  had  found  no  trace  of  glanders  or  other 
disease;  whereupon  action  was  postponed  until  after  further  con- 
sultation with  the  commissioners.  But  in  that  case  the  court 
looked  not  at  what  was  actually  done,  but  at  what  would  have 
been  permitted  under  the  statute.  So  far  as  appears  from  such 
portions  of  the  statute  as  are  set  forth  in  the  opinion  of  Raymond 
V.  Fish,  the  board,  though  required  to  notify  the  owner  to  abate 
within  some  time  set,  was  not  obHged  to  give  him  any  opportunity 
to  be  heard  before  the  issue  of  the  order.  In  assessing  property 
for  taxation,  a  hearing  must  be  given  not  as  a  matter  of  grace  or 
favor,  but  must  be  a  right  secured  by  the  statute." 

,  ^  Supra,  p.  448. 
*^  Stuart  V.  Palmer,  74  N.  Y.  183  (1873).  This  case  is  cited  in  a  dictum  in  People 
*.  Board  of  HeaUh,  142  N.  Y.  i  (1893),  to  show  that  the  same  rule  appHes  to  exer- 
cises of  the  police  power.  The  court  observes  that  before  a  final  and  conclusive  deter- 
mination could  be  made  as  to  the  existence  of  a  nuisance,  "  the  party  proceeded  aj^ainst 
must  have  a  hearing  not  as  a  matter  of  favor,  but  as  a  matter  of  ri>:;ht,  and  the  rif;ht 
to  a  hearing  must  be  found  in  the  act."  The  intimation  that  under  such  circum- 
stances the  administrative  fiat  could  not  be  ciuestioned,  contrasts  strangely  with 
another  observation  in  the  same  opinion  to  the  eiTect  that  "if  the  decisions  of  these 
boards  were  final  and  conclusive,  even  after  a  fwarins,  the  citizen  would  in  many  cases 


ADMINISTRATIVE  EXERCISE  OF  THE  POLICE  POWER.    453 

The  only  authority  cited  in  Raymond  v.  Fish  for  the  point  de- 
cided is  a  dictum  in  Salem  v.  Eastern  R.  R.  Co.,^  which  suggested 
that  though  the  determination  is  not  conclusive  in  an  action  against 
the  owner  for  the  expense  of  abatement,  the  board  to  whom  the 
determination  was  confided  are  protected  by  it  and  may  safely 
rely  upon  its  vahdity  for  their  defense.  But  that  case  related  to 
the  alteration  and  improvement  of  property,  not  to  its  destruction; 
the  statute  under  which  the  board  acted  made  no  provision  for 
notice  and  hearing;  and  in  Miller  v.  Horton,  a  later  decision  of 
the  same  court,  the  dictum  was  expressly  disapproved/^ 

In  Raymond  v.  Fish  the  constitutionality  of  the  interpretation 
put  upon  the  statute  is  asserted  rather  than  discussed.  In  speaking 
of  the  common-law  right  of  one  assailed  to  kill  in  self-defense, 
though  the  apparent  necessity  is  not  an  actual  one,  the  court 
queries : 

"If  Hfe  may  be  protected  by  destroying  life,  when  apparently  necessary 
but  not  so  in  fact,  may  not  life  be  protected  by  destroying  property 
when  apparently  necessary  though  afterwards  discovered  not  so  in 
fact?" 

This  analogy  seems  hardly  apposite.  No  health  officer  is  put 
on  trial  for  his  Hfe  for  murdering  a  horse  or  for  destroying  brush. 
The  apparent  necessity  which  in  prosecutions  for  homicide  re- 
lieves the  slayer  from  criminal  responsibility  might  not  be  deemed 
sufficient  to  excuse  him  from  paying  damages  to  the  estate  of  the 
deceased  for  his  error  of  judgment. 

The  reasoning  employed  in  Beeks  v.  Dickinson  County  et  al.,^ 
which  held  a  health  officer  immune  from  Habihty  for  having  quar- 
antined a  person  not  in  fact  infected  with  a  contagious  disease,  is 
likewise  unsatisfactory.     The  court  says: 


hold  his  property  subject  to  the  judgments  of  men  holding  ephemeral  positions  in 
municipal  bodies  and  boards  of  health,  frequently  uneducated  and  generally  unfitted 
to  discharge  grave  judicial  functions."    See  24  Harv.  L.  Rev.  340. 

«  98  Mass.  431  (1868). 

«  Judge  Holmes  says:  "The  remark  is  obiter,  and  it  is  doubtful  perhaps,  on  reading 
the  whole  case,  whether  it  means  that  the  determination  would  protect  them  in  an 
action  for  damages,  where  the  statute  provides  no  compensation  for  property  taken 
which  is  not  in  fact  a  nuisance.  To  give  it  such  effect  as  a  judgment  merely  would 
be  inconsistent  with  the  point  decided  and  with  Brigham  v.  Fayerweather,  140  Mass. 

II." 

46  131  Iowa  244  (1906),  supra,  p.  449. 


454  HARVARD  LAW  REVIEW. 

"It  is  the  modern  tendency  of  judicial  opinion  to  hold  that  the  public 
health  is  the  highest  law  of  the  land.  .  .  .  This  board  of  health  was 
the  creation  of  the  statute  and  its  paramount  duty  was  to  protect  the 
public  health;  its  duty  then,  was  to  the  public  and  not  to  any  indi- 
vidual member  thereof,  except  to  act  honestly  and  without  design  to 
injure  him.  If  a  health  officer  fails  to  do  his  duty,  no  indi\ddual  may 
complain,  for  the  duty  is  public  and  the  officer  is  not  charged  with  any 
individual  duty  to  any  particular  person.  If  there  be  no  liability  for  an 
omission  of  public  duty,  it  would  seem  to  follow  without  question  that 
an  erroneous  performance  should  not  subject  the  officer  to  personal 
liability.  It  may,  it  is  true,  cause  an  injury  to  the  indi\adual,  but  it  is 
not  a  wrong  because  the  officer  owes  the  individual  no  duty  beyond 
what  we  have  already  stated."  *'' 

But  the  court  blinds  its  eyes  to  the  wide  distinction  between  the 
absence  of  a  positive  duty  to  an  individual  with  respect  to  some 
service  that  may  be  claimed  only  by  the  public,  and  the  absence 
of  the  negative  duty  owed  to  all  individuals  by  all  individuals, 
whether  private  citizens  or  officers,  not  to  invade  legally  pro- 
tected rights. 

But  though  present  authority  may  not  sustain  the  proposition 
that  finality  is  to  be  accorded  to  administrative  decisions  whether 
certain  property  is  obnoxious  to  the  police  power,  the  courts  are 
tending  towards  sustaining  legislative  declarations  to  that  effect. 

In  Valentine  v.  Englewood  ^^  the  statute,  as  quoted  in  the  opinion, 
provided  that  "no  suits  should  be  maintained  against  the  board  or 
its  agents  to  recover  damages  for  proceedings  to  abate  and  remove 
a  cause  of  disease,  unless  it  should  be  shown  that  the  cause  of 
disease  did  not  exist,  was  not  hazardous  or  prejudicial  to  the  public 
health,  and  that  the  board  acted  without  reasonable  and  probable 
cause  to  believe  that  such  cause  was  in  fact  prejudicial  and  haz- 

"  The  opinion  puts  strongly  ihc  arKumcnt  of  pi;Mic  necessity:  "It  is  unfortunate 
that  any  individual  sliould  suffer  loss  because  of  a  mistake  as  to  the  existence  of  a 
dangerous  disease,  and  yet  the  welfare  of  the  i)ul)lii'  is  of  such  paramount  imiiortance 
that  a  rule  should  not  be  established  which  will  have  the  necessary  elTect  of  increas- 
ing the  luiblic  danger.  If  health  olTicers,  acting  in  perfect  good  faith  and  as  their 
judgment  dictates,  arc  held  lial)lc  for  a  mistake  in  judgment,  the  elTect  upon  the 
I)iil)lic  liealtii  cannot  lie  doubted.  ...  if  civil  Iial)ility  is  to  l)e  imimsed  liecausc  of 
a  f|uarantine  wlii(  h  is  later  proved  unnecessary,  the  danger  to  the  i)ublic  will  be  greatly 
enhanced,  and  the  elTeclivencss  of  the  statute  greatly  imi)aired.  We  do  not  feel  like 
announcing  such  a  rule,  nor  do  wc  believe  justice  to  the  individual  requires  it." 

"  76  N.  J.  L.  509  (1908). 


^     ADMINISTRATIVE  EXERCISE  OF  TEE  POLICE  POWER.     455 

ardous  to  the  public  health."  The  language  is  susceptible  of  two 
interpretations.  It  might  be  argued  that  it  indicates  a  distinction 
between  the  existence  of  a  source  of  disease  and  the  possibility  of 
hazard  from  such  source.  A  swamp  with  typhoid  germs  might 
be  deemed  a  source  of  disease,  and  yet  be  so  situated  that  it  was 
not  in  fact  hazardous.  It  would  follow,  then,  that  since  the  statute 
relates  reasonable  cause,  not  to  the  beHef  in  the  existence  of  the 
source  of  disease,  but  to  the  belief  in  the  possibihty  of  hazard, 
it  means  to  allow  suit  even  where  a  source  of  disease  exists,  if  the 
plaintiff  can  establish  "that  the  board  acted  without  reasonable 
and  probable  cause  to  beheve  such  cause  was  in  fact  prejudicial 
and  hazardous  to  the  pubHc  health."  On  the  other  hand,  it  may 
be  urged  that  since  the  purpose  of  the  statute  was  to  limit,  not  to 
vest  a  right  of  action,  and  its  language  in  specifying  exceptions 
to  the  limitation  on  the  right  to  sue  is  cumulative  and  not  in  the 
alternative,  that  it  means  to  condition  the  right  of  the  plaintiff 
not  only  on  showing  that  no  source  of  disease  existed,  but  on 
establishing  further  that  the  board  had  no  reasonable  grounds  to 
believe  that  the  alleged  source  was  in  fact  hazardous.  Where  the 
alleged  source,  if  it  existed,  was  necessarily  hazardous,  this  would 
require  him  to  show  the  absence  of  reasonable  grounds  for  believ- 
ing that  the  alleged  source  was  one  in  fact. 

In  the  case  before  the  court,  if  any  cause  of  disease  existed,  it 
was  necessarily  hazardous.  Damages  were  sought  for  quarantin- 
ing the  plaintiff  on  the  mistaken  assumption  that  his  daughter 
had  scarlet  fever.  The  trial  judge  had  nonsuited  the  plaintiff, 
and  the  higher  court  conceded  that  his  ruling  could  not  be  vindi- 
cated if  the  actual  existence  of  the  disease  was  essential  to  the 
justification  of  the  defendants.  The  issue  joined  upon  the  plead- 
ings was  only  whether  there  was  reasonable  and  probable  cause  to 
believe  that  the  symptoms  were  those  of  the  disease,  but  the  court 
said:  "It  would  be  taking  too  narrow  a  view  of  the  case  to  decide 
it  upon  this  question  of  pleading  only.  We  prefer  to  rest  the  deci- 
sion on  broader  grounds."  Without  analysis  the  statute  was  inter- 
preted as  follows: 

"What  our  legislature  has  done  in  the  Health  Act  is  in  substance  to  say 
that  anything  which  may  possibly  be  a  cause  of  disease  is  subject  to  the 
regulations  of  the  board  of  health,  when  that  board  has  reasonable  cause 
to  believe  that  it  is  in  fact  a  cause  of  disease.  .  .  .  The  legislature  has 


456  HARVARD  LAW  REVIEW. 

itself  undertaken  in  effect  to  make  a  nuisance  of  what  the  board  of 
health  shall,  upon  reasonable  and  probable  cause,  determine  to  be  a 
cause  of  disease." 

The  statute  thus  construed  was  held  to  distinguish  the  case  at 
bar  from  Miller  v.  Horton,^^  Lowe  v.  Conroy,^°  and  Pearson  v. 
Zehr.^^  Its  constitutionality  was  sustained  on  the  analogy  of  Train 
V.  Boston  Disinfecting  Co.,^-  and  the  general  principles  of  public 
welfare  and  necessity.  After  referring  to  decisions  sustaining 
statutes  requiring  an  eight-hour  law  for  laborers,  compelling  vac- 
cination, and  declaring  places  where  liquors  are  sold  to  be  nuisances, 
the  opinion  says: 

"These  cases  are  but  illustrations  of  the  extent  to  which  the  highest 
tribunal  has  gone  in  vindication  of  the  principle  that  the  indi\-idual 
must  yield  somewhat  of  his  personal  rights  to  society  in  return  for  the 
benefits  of  society  which  he  enjoys.  We  think  it  not  unreasonable  to 
require  him  in  a  case  like  the  present  to  depend  for  redress  upon  the 
sense  of  justice  of  the  public,  rather  than  upon  the  right  of  action  against 
public  officers  who  have  acted,  as  they  thought,  for  the  public  weal  in 
a  matter  of  public  duty." 

Though  the  court  distinguishes  the  case  at  bar  from  Miller  v. 
Horton''^  by  reason  of  the  statute,  it  disagrees  with  the  doctrine 
of  the  Massachusetts  court  that  in  the  absence  of  any  statute  the 
board  has  no  jurisdiction  unless  a  cause  of  disease  actually  exists. 
It  is  said  to  be  enough  if  the  matter  is  colorably,  though  not  really 
within  their  jurisdiction.  With  telling  force  Judge  Swayze  points 
out  that  Miller  v.  Horton  and  similar  cases  cannot  be  distinguished 
on  the  ground  of  excess  of  jurisdiction  from  the  many  instances  in 
other  exercises  of  governmental  power,  where  administrative  officials 
are  held  exempt  from  suit  when  called  upon  to  act  judicially. 

"If  a  postmaster-general,  or  a  postmaster  or  a  collector  of  a  port,  or 
an  assessor  of  taxes  are  to  be  immune  when  their  error  of  judgnTcnt 
causes  the  loss  of  another's  liberty  or  ]-)r()perty,  we  think  a  board  of 
health  is  entitled  to  a  like  immunity.  A  justice  of  the  jicace  is  immune 
if  he  acts  in  a  matter  coloral)ly  wilhiu  his  jurisdictitm.  Tlic  umUTlying 
reason  is  not  the  judicial  character  of  the  ofllcer,  but  the  jiulicial  char- 
acter of  the  act,  and  the  public  necessity  that  public  agents  engaged  in 


"  Supra,  p.  448.  "  Si(f)ra,  p.  447.  "  Supra,  p.  447. 

^  Supra,  p.  450.  "  Supra,  p.  448. 


ADMINISTRATIVE  EXERCISE  OF  THE  POLICE  POWER.    457 

the  performance  of  a  public  duty  in  obedience  to  the  command  of  a 
statute,  should  not  suffer  personally  for  an  error  of  judgment  which  the 
wisest  and  most  circumspect  cannot  avoid." 

It  seems  clear  from  the  discussion  in  the  opinion  that  the  court 
would  not  have  decided  differently,  had  there  been  no  statute 
limiting  the  right  of  action.  For,  in  the  endeavor  to  establish  that 
the  statute  authorizing  summary  procedure  and  yet  conferring 
immunity  proffers  due  process  of  law  under  the  Fourteenth  Amend- 
ment, it  says  that  due  process  does  not  always  require  notice  and 
a  hearing,  and  adds: 

"Where  the  board  of  health  is  required  to  act  upon  an  emergency,  due 
process  of  law  reqmres  only  that  they  should  be  liable  to  an  action  in 
case  they  act  wrongfully;  but  the  action  to  which  they  are  liable  is 
only  such  action  as  the  law  gives.  In  this  case,  the  common  law,  as 
we  have  already  shown,  gave  no  right  of  action  if  the  matter  upon  which 
the  board  decided  was  colorably  within  its  jurisdiction.  The  object  of 
the  Fourteenth  Amendment  was  not  to  give  the  parties  remedies  which 
did  not  exist  at  common  law,  but  to  protect  them  against  hostile  action 
by  the  state  depriving  them  of  existing  remedies." 

It  seems  to  smack  somewhat  of  casuistry  to  say  that  a  statute 
purporting  to  limit  a  right  of  action  does  not  do  so;  but  merely 
enlarges  the  jurisdiction  of  an  officer,  and  in  another  part*  of  the 
opinion  to  insist  that  the  statute  limiting  the  right  of  action  dis- 
tinguishes the  case  at  bar  from  the  precedents  where  no  such 
statute  was  present. 

Though  the  plaintiff  in  Valentine  v.  Englewood,  as  in  Miller  v. 
Horton,  had  been  permitted  to  present  the  opinions  of  experts 
called  by  him  before  the  board  took  its  action,  this  was  a  matter 
of  favor  and  not  of  right;  and  the  court  regards  the  action  taken 
as  though  no  hearing  had  been  accorded.  From  this  aspect  it  is 
hardly  sound  in  saying  that  the  statement  of  the  Supreme  Court 
that  whether  assessors  shall  be  held  liable  for  an  unlawful  assess- 
ment if  within  their  jurisdiction  is  a  matter  of  general  municipal 
law  and  raises  no  federal  question,  is  an  authority  for  the  propo- 
sition that  a  statute  authorizing  such  exemption  in  a  case  like  the 
one  at  bar  does  not  contravene  the  Fourteenth  Amendment.  For 
the  Supreme  Court  has  indicated  very  clearly  that  a  statute  author- 
izing the  summary  destruction  of  property  as  a  police  measure 


458  HARVARD  LAW  REVIEW. 

would  be  invalid  under  the  Fourteenth  Amendment,  but  for  the 
fact  that  the  owner  could  have  a  judicial  determination  as  to  its 
condition  in  an  action  for  damages  against  the  officer.^"*  The 
statute  in  the  present  case  can  escape  from  the  principle  of  that 
decision  only  because  the  invasion  of  Uberty  and  property  is  tem- 
porary and  inconsequential  when  compared  with  the  public  danger 
to  be  averted. 

The  opinion  in  Valentine  v.  Englewood,  though  given  in  a  case 
involving  only  slight  interference  with  property  and  personal 
hberty,  where  the  consequences  of  excess  of  caution  would  be  far 
more  serious  than  those  of  excess  of  zeal,  clearly  points  the  way 
to  an  extension  of  the  immunity  hitherto  accorded  to  administra- 
tive officials  in  taking  measures  to  safeguard  the  pubHc  health. 
The  advancing  trend  of  judicial  opinion  is  gradually  forsaking  the 
individualistic  doctrines '  underlying  the  precedents  of  an  earlier 
generation,  and  demonstrating  the  truth  of  the  maxim  of  ]\Ir. 
Justice  Holmes  in  his  lectures  on  The  Common  Law  that  the  "Hfe 
of  the  law  is  not  logic  but  experience,"  or  affording  illustration 
for  the  tenets  of  that  school  of  philosophy  which  urges  that  the 
only  sound  logic  is  the  logic  of  experience. 

The  decrees  of  the  courts,  however,  still  lag  behind  the  utter- 
ances of  the  opinions.  The  immunity  of  officials  for  acts  done  in 
enforciftg  the  poHce  power  cannot  yet  be  said  to  be  established  ex- 
cept where  the  interference  is  with  personal  liberty  rather  than  with 
property,  or  where  the  interference  with  property  falls  short  of 
destruction,  or  is  not  executed  until  the  individual  has  been  given 
an  opportunity  to  take  action  himself  and  thus  enabled  by  prompt 
action  to  secure  judicial  relief  in  some  other  proceeding.  But  it 
may  reasonably  be  expected  that  the  immunity  will  some  day  be 
extended  to  cases  where  the  individual  has  been  able  as  a  matter 
of  right  to  urge  before  the  administration  his  claims  to  freedom 
from  interference.  At  present,  however,  the  courts  sccni  still  con- 
vinced that  when  property  is  destroyed  in  the  exercise  of  the  police 
power  the  owner  must  have  somewhere  in  judicial  proceedings 
the  opportunity  to  offer  evidence  as  to  its  condition.  The  Chan- 
cellor and  the  jury  are  regarded  as  best  suited  to  determine  finally 
the  disputed  question  of  fact.  And  thus  indirectly  the  community 
is  being  forced  to  assume  the  burden  of  loss,"^  thereby  relieving 

"  North  American  Cold  Storage  Co.  v.  Chicago,  211  U.  S.  306  (190S),  supra,  p.  449. 
"  See  supra,  p.  447,  note  29. 


ADMINISTRATIVE  EXERCISE  OF  THE  POLICE  POWER.    459 

both  the  owners  who  are  without  fault  and  the  administrative 
authorities  who  may  make  mistakes  in  the  honest  endeavor  to 
perform  the  duties  entrusted  to  them  by  law.  The  same  solution 
of  the  vexed  problem  is  suggested  by  the  courts  in  the  instances 
where  the  burden  is  now  placed  on  the  owner  rather  than  on  the 
administrative  official.^^ 

Judge  Holmes,  in  Miller  v.  Horton,  doubted  the  constitution- 
ality of  a  statute  which  should  "declare  in  plain  terms,  that  such 
healthy  animials  as  should  be  killed  by  mistake  for  diseased  ones, 
should  not  be  paid  for."  Probably  no  statute  would  announce 
bluntly  that  an  officer  should  not  be  liable  for  destroying  property 
erroneously  declared  injurious,  even  after  a  hearing.  But  in  some 
such  language  as  that  employed  by  the  statute  in  Valentine  v. 
Englewood  it  might  accord  finality  to  the  determination  of  an 
expert  body,  in  spite  of  the  contrary  finding  of  twelve  other  men 
who  composed  the  jury  in  a  suit  for  damages. 

Much  confusion  is  due  to  the  nebulous  purport  of  the  word  fact. 
Judicial  interpretation  invariably  identifies  it  with  something  de- 
termined to  be  true  in  judicial  proceedings.  A  contrary  notion 
sometimes  prevails  among  those  who  suffer  from  the  fmdings  of 
blundering  juries.  The  truth  in  these  matters  is  not  capable  of 
absolute  mathematical  demonstration.  We  must  accept  as  final 
the  opinion  of  some  designated  fallible  human  beings.  A  jury  is 
as  prone  to  error  as  an  expert  body. 

In  other  exercises  of  governmental  power,  finality  is  accorded  to 
administrative  determinations  based  on  the  consideration  of  evi- 
dence submitted  by  those  whose  interests  are  involved.  A  tax 
paid  on  property  actually  worth  twenty  thousand  dollars  but 
erroneously  valued  at  twice  that  amount  cannot  be  recovered. 
The  loss  may  be  greater  than  the  value  of  a  horse  or  a  steer.  It 
is  thought  that  the  welfare  of  collective  society  is  promoted  by 
vesting  the  power  of  final  decision  in  administrative  officials.  The 
rule  may  come  in  time  to  be  applied  to  the  exercise  of  the  police 
power,  whenever  the  courts  conclude  that  this  collective  advantage 
outweighs  the  possible  injury  to  individuals  who  insist  that  the 
administration  has  acted  erroneously. 

Thomas  Rccd  Powell. 

Burlington,  Vt. 


66 


Supra,  p.  456. 


VITA 

Thomas  Reed  Powell  was  born  in  Richford,  Vermont,  April 
29,  1880,  received  the  degree  of  A.B.  from  the  University  of 
Vermont  in  1900  and  the  degree  of  LL.B.  from  Harvard  Uni- 
versity in  1904.  He  was  admitted  to  the  Vermont  Bar  in  May, 
1904,  and  during  the  two  succeeding  years  was  engaged  in  the 
practice  of  law  in  Burlington,  Vermont.  From  1906  to  1908  he 
was  a  student  in  the  School  of  Political  Science,  Columbia  Uni- 
versity, where  he  pursued  the  study  of  Administrative  and 
Constitutional  Law,  Comparative  Government,  History  and 
Political  Theory  under  the  direction  of  Professors  Goodnow, 
Burgess,  Dunning  and  Osgood. 

He  has  held  the  appointments  of  Lecturer  in  Public  Law, 
Columbia  University,  1907-1908,  191 1-191 2  ;  Associate  in  Political 
Science,  University  of  Illinois,  1908-1910;  Honorary  Fellow  in 
Administrative  Law,  Columbia  University,  1910-1912,  and 
Associate  in  Law,  Columbia  University,  1912-1913. 

He  has  been  a  contributor  to  the  Political  Science  Quarterly^ 
the  Harvard  Law  Review,  the  Annals  of  the  American  Academy  of 
Political  and  Social  Science,  the  Columbia  Law  Revieiv,  the  Ameri- 
can Political  Science  Review,  and  the  Journal  of  the  American 
Institute  of  Criminal  Law  and  Criminology. 


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